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THE HISTORY OF GEORGIA IN THE 
EIGHTEENTH CENTURY, AS RE- 
CORDED IN THE REPORTS 
OF THE GEORGIA BAR 
ASSOCIATION 



IHE 



COMPILED BY 

ORVILLE A^ PARK 

OF MACON. 



Read before the Thirty-eighth Annual Session 

of the Georgia Bar Association at 

Tybee^ Island, Georgia 

June 3, 1921. 



[Reprinted from the Annual Reportl 
of the Georgia Bar Association. J 






,^^^ 11. 'tit) 



THE HISTORY OF GEORGIA IN THE 
EIGHTEENTH CENTURY, AS RE- 
CORDED IN THE REPORTS 
OF THE GEORGIA BAR 
ASSOCIATION 



COMPILED BY 

ORVILLE A. PARK, 

OF MACON. 



In his address as President of this Association (1889) 
Walter B. Hill called attention to the new literature coming 
into existence through the instrumentality of the bar associa- 
tions of the several States — *'a literature,'' which he charac- 
terized as, "of great value, and thoroughly creditable to the 
associated effort which has led to its development"^ Ten 
years later, having become in the meantime the great Chan- 
cellor of the University, he said : 

"More important than any single utility of the Associa- 
tion has been the creation of a new species of legal literature. 
No member of the Association can fail to contemplate with 
pride the eighteen volumes of the reports of its proceedings. 
These reports are most highly esteemed and are greatly 
sought in other States. They contain monographs on legal 
topics, and valuable contributions to legal history, to the 
discussion of public questions, and to the literature of 
the law"^' 

Having served the Association in an official capacity for 
more than half of its thirty-eight years of life and on that 
account being especially conversant with its reports, the Exe- 
cutive Committee has asked me to prepare a paper on the As- 
sociation's literature. To attempt to discuss it all, even in 
the briefest way, is entirely beyond the limits of a single 
paper. I have therefore chosen as the particular topic to pre- 
sent for your consideration the history of Georgia as record- 



ed in the reports, and for two reasons : First, because in no 
field has the literature of the Association been of greater 
interest or of more lasting value; and second, because this 
valuable historical material is in large part unavailable and 
practically lost, scattered as it is through thirty-eight annual 
reports (several of which are out of print), in addresses, 
papers and the reports of committees, unindexed and well 
nigh forgotten. 

Of course the Bar Association historians have been 
largely interested in the constitutional and legal history of 
the state and its military and political history are only al- 
luded to incidentally. And each one has written on some 
particular topic rather than on a period of time. Some in- 
cidents or some phases of the history may be given undue 
emphasis or treatment out of proportion to their impor- 
tance, while other and mayhap more important matters may 
be passed over with but scant notice. Yet I do assert 
that a very fair history of Georgia has been written and 
recorded in the annual reports of the Georgia Bar Associa- 
tion, and much of the legal history of the state is better told 
in these reports than anywhere else. 

When I had collected this historical material together 
I confess I was amazed at its scope, its volume, and its rich- 
ness. I soon discovered it would be impossible to use it 
all, and therefore decided to confine this paper to the first 
sixty-seven years, from the founding of the Colony to the end 
of the century. 

It has seemed best to let these Association historians 
tell their own stories in their own language rather than to 
use the material which, with so much painstaking care, they 
have laboriously gathered, in the preparation of a new and 
an independent history. 

The plan adopted is after the manner of the "Histo- 
rians' History of the World" — extracts from different au- 
thors being put together to form something of a connected 
whole. Of course the story is not so smoothly told by the 

2 



lips of many as if one only had spoken. But under the plan 
adopted the identity of each writer is preserved — each tells 
his own story in his own way. 

Thirty-six different papers, addresses and monographs 
have been used in the compilation. From some of them 
only a paragraph, perhaps only a sentence or two, is taken, 
while others are used almost bodily. On some of the topics 
only one author has written, while in other sections almost 
every paragraph is taken from a different paper. 

In order not to break into the thread of the story quo- 
tation marks are not used and the names of the authors 
and references to their papers are omitted. Following each 
extract, however, and all are quoted almost literally, is an 
Arabic numeral referring to a table at the end of the paper 
which gives the name of the author and of his paper with 
a reference to the Georgia Bar Association Report in which 
the paper may be found. 

For convenience of reference, the paper being much long- 
er than the usual Bar Association paper, a table of contents 
is inserted. 

Macon, Ga. 

September i, 1921. 

ORVILLE A. PARK 



CONTENTS 

The Original Grants 5 

The Charter of the Colony 6 

The First Settlement 7 

The Terms and Conditions of the Grants of Land 8 

Oglethorpe's Treaties with the Indians 11 

The First Conveyances 12 

Restraints upon Alienation Removed 13 

No Records of Laws Passed During This Period 15 

The Town Court and its Jurisdiction ^__ 15 

Bailiff Causton and the Lawyerless Court 17 

No Lawyers but Much Litigation 23 

Litigation with the Trustees in England 26 

Georgia, a Royal Colony 28 

The General Court and its Judges 30 

The Practice of Law in the Colony 33 

The Colony Divided into Parishes 36 

The South Carolina Grants 36 

The Form and Conditions of the Grants 37 

Colonial Legislation 41 

The Beginning of the Conflict 50 

The Constitution of 1777 54 

The Revolution 61 

The Judiciary, 1777-1800 69 

Some Eighteenth Century Judicial Proceedings 72 

The Bar 79 

Georgia Under the Articles of Confederation 82 

The Head-Right System 84 

The Status of Married Women 89 

The Beaufort Convention 91 

The Western Boundary 96 

The Federal Constitution Ratified 97 

The Constitution of 1789 98 

McGIllIvaray and the Treaty of New York loi 

Georgia v. Brailsford 102 

Chisholm v. Georgia 104 

Clark's Independent State 106 

The Constitution of 1795 114 

The Yazoo Fraud 114 

The Pine-Barren Speculations 122 

The Constitution of 1798 126 

The Laws Compiled and Published 133 

The Judiciary Act of 1799 137 



GEORGIA IN THE EIGHTEENTH CENTURY 

THE ORIGINAL GRANTS 

Georgia began its career as a trust estate; and the em- 
ployment of a lawyer must have been among the first acts 
of the Board of Trustees, for, by reason of repeated and 
conflicting grants, the title to this wilderness was in such con- 
fusion that we can almost imagine an attorney making an 
examination of the various royal charters, and submitting 
to his clients something like a modern Abstract. It would 
show the original grant to Lord Raleigh; his attainder in 
1603; the consequent forfeiture of this property to the 
Crown; then the actual grant from Charles I to Sir Robert 
Heath, which by reason of non-user, or failure to comply 
with conditions, was declared void; next, the grant by Char- 
les II to the Lords Proprietors of South Carolina, who, in 
1717, conveyed all of the land between the Savannah and 
the Altamaha to Sir Robert Montgomery, there to found 
a colony, bearing the bombastic name of "Margravate of 
Azilia."^ 

The grant was, however, to be void unless a settlement 
was effected within three years. And albeit Sir Robert de- 
vised a most marvellous scheme of settlement, and in his 
prospectus invited settlers on most liberal terms to come to 
this new Province, of which is herein set forth, "that nature 
hath not blessed the world with any tract which can be perf- 
erable to it; that Paradise, with all her virgin beauties, may 
be modestly supposed, at most, but equal to the native excel- 
lencies," this Eden remained unpeopled save by th savage. 
The grant expired and with it the "Margravate of Azilia."* 

The estate again vested in the eight Lords Proprietors of 
South Carolina, seven of whom, in July 1726, sold their un- 
divided seven-eighths interest to the king for the sum of 
22,500 pounds sterling. (Watkins, 713.) 

This Abstract showing the fee not to be in the Crown, 
the Trustees evidently decided to take what they could get, 
and a deed to this seven-eighths interest was made to them 
in July, 1 73 1. Probably, in consideration of a grant by 



the King to land in North CaroHna, John, Baron Hawnes, 
Lord Carteret (afterwards Lord Granville), conveyed his 
interest to the Trustees on February 28, 1732, and thus 
the entire estate to this principality was vested in the Trus- 
tees of the Colony of Georgia for the space of twenty years. ^ 

THE CHARTER 

With the motives and purposes inducing the settlement 
of the Colony of Georgia, it is not the province of this paper 
to deal. That its origin sprung from the great heart of 
General Oglethorpe, as its successful accomplishment was 
due to his genius for organization and government is a mat- 
ter of history — a history but recently eloquently told by a 
distinguished member of our profession and of this body, 
(Chas. C. Jones) whose performance has left nothing un- 
said or to be desired. The charter which is a fine specimen 
of the conveyancer's art, first recites the reason for the in- 
stitution of the Colony, namely, to afford to impoverished 
persons an opportunity to earn in the free lands of the New 
World that livelihood which they could not find in the old; 
to strengthen the Southern Colonies of America, and es- 
pecially to interpose a barrier to the repetition of the In- 
dian ravages recently committed in South Carolina. For 
these ends it creates "Our trusty and well beloved John, 
Lord Viscount Percival, of our Kingdom of Ireland; our 
trusty and well beloved Edward Digby, George Carpenter, 
James Oglethorpe, George Weathcote, Thomas Tower, 
Robert Moor, Robert Wicks, Roger Holland, William 
Sloper, Francis Eyles, John Laroche, James Vernon, Wil- 
liam Belitha, Esqrs., A. M.; John Burton, B. D.; Richard 
Bundy, A. M.; Arthur Bedford, A. M.; Samuel Smith, A. 
M.; Adam Adderson and Thomas Coram, gentlemen; their 
associates and successors a corporation by the name of 'The 
trustees for establishing the Colony of Georgia, in North 
America.' " It conveyed to the corporation "seven undivid- 
ed parts, the whole in eight equal parts, to be divided, of 
all those lands, countries and territories lying and being in 
that part of South Carolina, in America, which lies from the 



most northern part of a stream or river commonly called 
the Savannah, all along the sea coast to the southward, un- 
to the most southern stream of a certain other great water 
or river called the Altamaha; and westerly from the heads 
of the said rivers respectively, in direct lines to the south 
seas, and all that shore, circuit and precinct of lands within 
the said boundaries, with the islands on the sea lying oppo- 
site to the eastern coast of the said lands, within twenty 
leagues of the same, which are not inhabited already, or set- 
tled by any authority derived from the Crown of Great 
Britain;"* "with all the soils, grounds, ports, gulfs, bays, 
mines, as well royal mines of gold and silver as other 
mines, precious stones, quarries, woods, rivers, waters, fish- 
ings, as well royal fishings of whales and sturgeons as 
other fishings, pearls, commodities, jurisdictions, royalties, 
privileges and pre-eminenices."^ 

THE FIRST SETTLEMENT 

The province was named "Georgia." Ample powers 
were given to the trustees for founding the Colony. They 
were to act through a common council, which could dispose 
of the lands of the Province at will; but as a check upon large 
estates, it was "Provided, also, that no greater quantity of 
lands be granted, either entirely or in parcels, to or for the 
use or in trust for any one person, than five hundred acres, 
and that all grants made contrary to the true intent and 
meaning hereof should be absolutely null and void." 

On the 20th of July, 1732, the corporators met, accepted 
the charter, and proceeded to perfect an organization. So 
rapidly did matters progress, that on the 17th of November, 
1732, Oglethorpe sailed with the first colony for Georgia, 
arriving at Charleston, in the province of South Carolina, 
on the 13th of January, 1733, where the colonists rested for 
a short period, while Oglethorpe went southward to choose 
the foundation for this new State. Leaving Charleston, af- 
ter a voyage of three days, the colonists landed, on the first 
day of February, 1733, at Yamacraw Bluff. In the language 
of Georgia's latest historian, (Jones) : "The ocean had been 



crossed and the germ of a new colony was planted in 
America." 

TERMS AND CONDITIONS OF THE GRANTS OF LAND 

In order to facilitate the taking up of lands, the trustees 
had, on the 25th day of October, 1732, conveyed to three of 
the colonists, Thomas Christie, William Calvert and Joseph 
Hughes, five thousand acres of land in the colony of Geor- 
gia in trust to convey therefrom fifty acres to every male 
adult who requested it and wished to settle. The terms and 
conditions of the grants were fixed by the trustees. The 
principal conditions were these: 

"The grantee of a town lot was to build upon it, within 
eighteen months, a house twenty-four by eighteen feet, at 
least eight feet high, and reside in the province for three 
years. Ten acres of the fifty acres should be cleared and 
cultivated within ten years from date of grant. One hun- 
dred white mulberry trees were to be planted as soon as the 
clearing therefor could be made, and were to be carefully 
preserved, and all trees dying were to be replaced by mul- 
berry trees. 

"No alienation for any term, or of any estate, without 
special license from the trustees was allowed. 

"Conviction of felony or the employment of negroes, 
without license, were the grounds of forfeiture." 

In addition to these conveyances to be made by Calvert, 
Christie and Hughes, the trustees further offered to grant 
to any person who would, within twelve months from date 
of grant, remove to Georgia with ten able-bodied free white 
men servants, all of age, and remain three years, cultivating 
the lands and building thereon, five hundred acres at a rent- 
tal of twenty shillings per one hundred acres to begin ten 
years from the date of the grant. Within ten years the gran- 
tee undertook to clear two hundred acres and plant there- 
on two thousand white mulberry trees and on every one hun- 
dred acres as cleared one thousand additional trees of like 
sort. Any part of the tract remaining uncultivated, unclear- 
ed, unplanted and without worm fence or paling six feet 

8 



high, after the expiration of eighteen years, should revert 
to the trustees. 

To male servants filling a term of service of not less than 
four years in the province the common council agreed, that 
upon the expiration of their term, if requested by the grantee 
so to do, to grant to each of them "twenty acres of land in 
tail-male upon such rents, conditions, limitations and cove- 
nants, as might have been attached to grants to men-servants 
in like circumstances." 

The grantees of the five hundred acre tracts were pro- 
hibited from keeping, lodging, hiring, or employing any 
negro except by special permission; in fact the general pro- 
hibition of the trustees declared: "The use of negroes and 
rum is prohibited in this province." 

It will be remembered that by the charter of the colony 
it was provided that no one should hold more than five hun- 
dred acres of land. One of the principal objects of this pro- 
vision was, by preventing large holdings, to repress the con- 
sequent temptation to employ slave labor and to thus pre- 
vent the importation of negroes into the province. 

To the infant colony two things were of vital importance, 
a supply of food and an organized military force to repel 
Indian attacks; this last no less necessary to insure the sup- 
ply of food than to protect life. 

The necessities of the case, demanding that the grantor 
of the soil should find in his feoffee a farmer and a soldier, 
produced a curious repetition of history in the character of 
the estates granted; and as the military character of the feud- 
al system produced the estate in tail-male, which might fur- 
nish in the tenant a soldier for the war, so in the youngest 
Colony of Great Britain on the American continent, the es- 
tate tail which could furnish the male tenant as a soldier and 
farmer was introduced in the one and universal tenure of 
land. 

This analogy may be pursued further: Every lawyer 
knows the many statutes passed to prevent the alienation of 
estates tail, and their evasion by the Courts. And it is reas- 
sonably certain that in the earlier days of their institution. 



such alienation was rigidly prohibited, in order that the num- 
ber of military tenants should not be lessened by one tenant 
holding two or more fiefs. And so it is stated of the lands 
in Georgia by a writer who visited the Colony in 1735, that 
they may not be alienated by the owners. Says this writer: 
"In order to maintain many people, it was proper that the 
land should be divided into small Portions, and to prevent 
the Uniting them by Marriage or Purchase. For every time 
that two Lotts are United the two looses a Family, and the 
Inconveniency of this shows itself at Savannah, notwith- 
standing the care of the Trustees to prevent it. They suf- 
fered the moiety of the Lotts to descend to the Widows dur- 
ing their lives. Those who remarried to men who had Lotts 
of their own, by uniting two Lotts made one to be neglected, 
for the strength of Hands who could take Care of one was 
not sufficient to look to and improve two. These uncleared 
Lotts are a Nuisance to their Neighbors. The trees which 
grow upon them Shade the Lotts; the Beasts take shelter 
in them, and for want of clearing the Brooks which pass 
through them, the Lands above are often prejudiced by 
Floods. To prevent all these Inconveniences, the first Reg- 
ulation of the Trustees was a strict Agrarian Law, by which 
all the Lands near Towns should be divided — 50 acres to 
each Freeholder. The Quantity of Land, by Experience, 
seems rather too much, since It Is impossible that one poor 
Family can tend so much Land. If this Allotment is too 
much, how much more inconvenient would the uniting of two 
be? To prevent it, the Trustees grant the Lands in Tail- 
Male, that on the expiring of a Male Line, they may regrant 
it to such Man having no other Lott as shall have married 
to the next Female Heir of the Deceased as is of good char- 
acter. This manner of Dividing prevents also the Sale of 
Lands and the Rich thereby monopolizing the Country." 
(Francis Moore's Voyage to Georgia (1734), 27.) 

Or, as it Is was expressed in the rules laid down by the 
Trustees for the year 1735: 

"All Lots are granted in Tail-Male, and descend to the 
Heirs Male of their bodies forever, and in case of Failure 

10 



of Heirs Male to revert, to be granted again to such Persons 
as the Common Council of the Trustees shall think most 
for the Adv-antage of the Colony; and they will have a spe- 
cial Regard to the Daughters of Freeholders who have 
made improvements on their Lots, not already provided 
for by having Married or Marrying Persons in Possession 
or entitled to Lands in the Province of Georgia, in Posses- 
sion or Remainder. 

"All Lotts are to be preserved separate and undivided, 
in order to keep up a number of men equal to the number of 
Lotts, for the better defence and support of the Colony. No 
person can lease out his House or Lott to another without 
License for that Purpose, that the Colony may not be ruined 
by absentees receiving and spending their Rents elsewhere. 
And no person can alienate his Land, or any Part, or any 
Term, Estate, or interest therein to any other Person, with- 
out special License for that Purpose; to prevent the uniting 
or dividing of the Lotts." 

A modification of these rules, however, permitted the 
person dying without male heir to name his successor, and 
to him the trustees regranted the lands in like tail-male.* 

Oglethorpe's treaties with the Indians 

By a treaty made with the head men of the various 
tribes of the Creek Indians, on the 21st of May, 1733, the 
lands between the Savannah and Ogeechee, with the excep- 
tion of a reservation on the Savannah river near Pipemaker 
bluff, and all lands and islands within tide-water between the 
Ogeechee and Altamaha, except the islands of Ossabaw, St. 
Catharine and Sapelo, were granted to the trustees. This 
treaty was confirmed by another, made in 1739.^ 

The treaty of 1733 was also our first attempt to regulate 
commerce. In it General Oglethorpe fixed the commercial 
relations between us and our Indian neighbors. We agreed 
that a white blanket should equal five buckskins, a blue one 
three, a gun ten, eighteen flints one, and a knife one doeskin; 
and the Indians agreed "to keep the talk in our hearts as 
long as the sun shall shine or the waters run in the rivers." 

11 



That of 1739 reached a somewhat higher plane, when Geor- 
gia obtained her first "fugitive slave law," the Indians agree- 
ing that they would return them and have for each live slave 
caught beyond the Oconee four blankets and two guns, 
and half that if on this side of the Oconee; but if the slave 
was killed running away or resisting arrest, one blanket 
was to be paid for the delivery of his head.' 

The more we study the career of Oglethorpe, the more 
we are impressed with the broad greatness of his spirit and 
the long reach of his practical and business Ifke intellect. 
The military dispositions he made are above criticism and his 
skill in dealing with the Indians suggests the highest prac- 
tice of statesmanship.' 

THE FIRST CONVEYANCES 

The Trustees, having acquired all outstanding titles to 
the district of Savannah, and the town having been laid 
out and the lots distributed, on the 21st of December, 1733, 
Thomas Christie and William Calvert, the survivors of the 
three colonists, created trustees for this purpose; conveyed 
in one deed to eighty-four grantees, fifty acres of land to 
each; each fifty acres comprising one town lot in Savannah, 
sixty by ninety feet, a garden lot on the confines of the town 
of five acres, and a farm of forty-four acres and one hundred 
and forty-one poles. Two shillings per annum, to commence 
at the expiration of ten years, was to be paid as rent for each 
lot. 

The conditions of the deeds have been already given. 
The lands were granted in tail-male. This, the first deed 
ever executed in Georgia, is of record in the Secretary of 
State's oflUce. Attached to it is a schedule of the wards, 
tithings and lots, with their grantees. A plat of Savannah, 
therein referred to as attached, is not recorded with it, and 
has been lost. 

As shedding further light on the tenures and titles of 
that time, the partial description of the division of the land 
as determined upon by the trustees, to promote the best 
interests of the Colony, given by Francis Moore in his 

12 



account of Savannah, which he visited in 1735, is of interest. 

"Each Freeholder has a Lott in Town 60 Foot by 90 
Foot, besides which he has a Lott beyond the common, of 5 
acres, for a Garden. Every ten Houses makes a Tything and 
to every Tything there is a mile square which is divided into 
12 Lotts besides Roads. Each Freeholder of the Tything 
has a Lot or Farm of 45 acres there, and two Lotts are re- 
served by the Trustees to defray the charge of the public. 
The town is laid out for two hundred and forty Freeholders; 
The quantity of land necessary for that Number is 24 Square 
Miles; every 40 Houses in Town make a Ward to which 4 
Square miles in the Country belong; each Ward has a Con- 
stable and under him four Tything Men. Where the Town 
Lands end, the Villages begin; four Villages make a Ward 
without, which depends upon one of the Wards within the 
Town. The use of this is, in case a war should happen, that 
the Villagers without may have places in the Town to bring 
their Cattle and Families into for Refuge, and to that Pur- 
pose there is a Square left in every Ward big enough for the 
Out Wards to encamp in. 

"There is Ground also kept around about the Town un- 
granted in order for the Fortifications. Beyond the Villages 
commence Lotts of 500 acres; these are granted upon Terms 
of keeping 10 servants, etc. Several Gentlemen who have 
settled such Grants have succeeded very well and have been 
of great service to the Colony." (Moore's Voyage to Geor- 
gia (1735), 28.) 

As the freeholders of Savannah increased, deeds of like 
tenor with the first were duly executed to them. Other 
deeds were made by the trustees, through their common 
council, either direct or by some authorized agent. Some- 
times similar deeds of trust to that above described were 
made for like purpose. 

RESTRAINTS UPON ALIENATION REMOVED 

From the beginning there was more or less dissatisfac- 
tion felt at the refusal of the trustees to grant fee simple 
estates, and at the restraints on alienation; and frequent 

13 



were the petitions and remonstrances sent by the colonists 
urging the removal of these grievances.* 

Indeed, one writer recounts that just as the ship "Anne" 
was ready to sail, the Colonists insisted upon provision be- 
ing made by which the widow's dower should be secured and 
daughters could inherit from fathers. On account of the 
unsettled condition of the country and the war with the 
Spanish in Florida, the Trustees argued that estates in 
tail male should be preserved as an encouragement to 
persons capable of performing military service; but the 
colonists insisted on their position, and finally the mat- 
ter was unsatisfactorily compromised, by "ordaining that 
the widow should have her thirds, and an agreement that if 
the landowner died without male issue, he might by will 
designate his successor." The difficulty being temporized, 
the ship sailed. But the opposition continued in spite of 
the reasoning of those in control.^ 

In the complaints of the colonists this trouble always 
occupied a place next to the iniquities of the Judiciary. Fi- 
nally the Trustees, grown desperate, formulated a reform 
which thickened the fog and concerning which Dr. Tailfer 
felt called upon to observe: "We believe this paper will 
perplex most people who have not studied the law, to make 
sense of it; and as there are no lawyers in Georgia, it would 
seem as if it had been sent over with no other end than that 
it should not be understood."' 

On June 20th, 1739, the trustees, while refusing to grant 
the relief prayed, had modified the system so far as to permit 
daughters to inherit from deceased parents in default of 
male issue; and had further provided that the widow should 
have for life the mansion house, garden and a moiety of the 
lands of deceased, and that deceased, in default of issue, 
might devise his lands, provided that no devisee could hold 
more than five hundred acres. In default of devise, the land 
went to the heirs at law of the original grantees. Finally, 
on the 25th of May, 1750, the trustees, yielding to the 
prayers of the colonists, removed the ground of grievance 
by converting all estates heretofore granted, and hereafter 

14 



to be granted, by them into estates in fee simple, to be held 
in free and common socage. This, and the repeal of the law 
prohibiting the use of the slave, or negro labor, was soon 
felt in the impetus given to the location and settling of large 
bodies of land, which immediately followed.* 

NO RECORD OF LAWS PASSED DURING THIS PERIOD 

The Royal Charter authorized the Trustees "to make 
laws and regulations," but whether this only meant "by- 
laws," or whether those enacted have been lost, it is a fact 
that from the date of the settlement until the Trustees sur- 
rendered the property to the Crown as a Colony, there is 
scarcely a record of legislative action.^ 

THE TOWN COURT AND ITS JURISDICTION 

In most of the colonies the courts developed according 
to the needs of the inhabitants. But the Trustes for the 
Establishment of the Colony of Georgia did not wait to find 
out what was wanted, but before the colonists left London, 
organized a court with a full complement of officers and 
imposed a ready-made and most elaborate judicial machin- 
ery. So that when the "good ship Ann" sailed in 1732 with 
the "first sixty" as passengers, there was on board an undue 
proportion of the judiciary — 3 judges, 2 tything men, 2 con- 
stables and a clerk. 

Shortly after their arrival Oglethorpe determined to 
commemorate the founding of Georgia by opening court. 
Accordingly, on July 7, 1733, the Settlers met on the Bluff, 
the Commission was read, the Magistrates were inducted 
into office, court was opened, the first Georgia jury impanel- 
ed and a case was tried, (i Jones Hist, of Georgia, 151 ; i 
Stevens Hist, of Georgia, loi.) Thus the first public event 
in Georgia was a judicial function. And "July 7th," was 
long celebrated in the Colony as "Anniversary of Court 
Day," being its July 4th, February 22nd and Thanksgiving 
Day all in one. The Court thus so strikingly inaugurated 
was furnished with accompaniments most surprising for a 
tribunal in the woods of a new settlement. The judges were 
supplied with "purple gowns trimmed with furr," and the 

15 



Trustees purchased a "copper-gilt mace," costing the equiv- 
alent of $500, and a seal costing $150, or, together, five 
times the value of the log house in which court was held. 
They intended to give the judges a high-sounding title, and 
so they called them Bailiffs, after those bearing that name in 
an ancient English tribunal. In this they made a sad mistake, 
for from this now belittling title arose the impression that 
the court only had a petty jurisdiction. As a fact it had all 
the power over life liberty and property possessed by the Su- 
perior Court of the present day. This fact appears from the 
Commission which conferred jurisdiction "for the Hearing 
& Determining of all manner of Crimes Offences Pleas Pro- 
cesses Plaints Actions Matters & Things whatsoever aris- 
ing or happening within the Province of Georgia in America 
or between any Persons inhabiting or residing there whether 
the same be Criminal or Civil & whether the said Crimes 
be Capital or not Capital & whether the said Pleas be Real 
Personal or Mixt & for awarding or Making out Execu- 
tions thereupon; * * * all Treasons Misprisons of 
Treason Insurrections Rebellions Counterfeitings Clipping 
Washing Coining & other falsyfyings of the Money of great 
Britain or of any other Realm or Dominions Whatsoever 
also of all Murders Felonies Homicides Killings Burglaries 
Rapes of Women unlawful Assemblies Conspiracys Confed- 
eracys Transgressions Trespasses Riots Routs Rescues Es- 
capes Contempts Negligences Concealments Maintenances 
Oppressions Deceits & all other Crimes Offences & Injurys 
whatsoever & also of the Accesorys thereunto;* * * * 
full Power Jurisdiction & Authority to hold Pleas in all & 
all Manner of Causes suits & Actions as well Real as 
Personal & Mixt & of any Debt Account Tresspass in Eject- 
ment & other Trespasses Covenants Promises Contracts & 
Retinues whatsoever.*^ 

*The appointment of the Court and the commission of the three 
Bailiffs is set out in full as an appendix to Judge Lamar's "Bench 
and Bar of Georgia During the Eighteenth Century." 30 Ga. Bar 
Ass'n Rep. 52. 

16 



BAILIFF CAUSTON AND THE LAWYERLESS COURT 

On July 7, 1733, at the close of a hot summer day which 
had been devoted to feasting and thanksgiving and patriot- 
ism, the first court was organized in Georgia, presided over 
by Bailiffs George Symes, Richard Hodges and Francis Scott 
— Noble Jones being recorder and Richard Cannon and 
Joseph Coles, constables.' An old record innocently states: 
"There were no pleaders of the law present, but some fine 
old English beer."* Without a lawyer; without the faint- 
est appreciation of the terrible responsibility such a trust im- 
posed; without learning to apprehend and, as was demon- 
strated, without capacity to observe or ambition to acquire, 
this remarkable tribunal began its career thousands of miles 
from the sources of its power, in a strange land and in a com- 
munity made up of English, Scots, Germans and Indians. 
The office or the climate seems to have been too much for 
Mr. Hodges, who was speedily gathered to his fathers. 
What might have been the brilliant careers of Symes and 
Scott will ever be speculative, for Mr. Thomas Causton 
being named to the vacancy, from that moment the Court 
was Causton, and Causton was the Court. There being no 
constitutional inhibitions in those days, it befell that Mr. 
Causton was also the public storekeeper — an incident not 
without its influence on the early judicial history of Georgia. 
Who he was and whence he came ! How he looked and in 
what garb moved among those dependent upon his lofty 
caprice, are of the mysteries as profound as the birthplace 
of Homer or the pleasing air which was wafted to the re- 
strained mariners of the wandering Ulysses. By what comes 
pretty near being the consensus of colonial opinion, he was 
of a limitless ambition; passionate and proud; regarding 
public office as a private Investment, and conducting himself 
generally as the central figure of a colonial system which had 
been exploited with the single view of enabling him to grow 
and develop to full proportions. It cannot but be interest- 
ing to the learned and dignified jurists who in our day toil 
for scant reward for the people of Georgia and who sit ha- 
bitually in the blinding glare of public opinion, to consider 

17 



their far-off predecessor who, sitting in the humble hut at 
Savannah, which was by courtesy called a court, did as he 
pleased not only in defiance of public opinion but with a fixed 
determination, perfectly understood, to commit public opin- 
ion to jail, in his capacity of judge, if it protested, or to 
starve it into submission In his capacity of storekeeper. 
When the long-suffering trustees, at length concluding that 
he had sufficiently monopolized the public attention, sent 
Mr. Peter Gordon to take his place, the resourceful Mr. 
Causton simply shifted his person a few feet from the court- 
room to the public store, and declining to furnish Mr. Gor- 
don with commissary supplies, that unfortunate gentleman, 
after a hopeless siege, maintained with fortitude and with- 
out provisions, struck his flag and moved out of his strong- 
hold, which was at once reoccupled by Mr. Causton — that 
great man holding that public ofiSce was ferae naturae and 
when at large belonged to whomsoever could catch and hold 
it. Grand juries fulminated and petitions filled with more 
grievances than the Declaration of Independence found their 
way across the seas and were duly gathered into the Minutes 
and Journal of the Trustees. The reading is rich and va- 
ried. It appears that if an associate justice did not readily 
acquiesce In the policies and decisions of Mr. Causton, that 
gentlemen incited him to undue indulgence in strong liquor, 
of which there was no lack in General Oglethorpe's prohi- 
bition State. From the bench he declared that the laws of 
England were no laws In Georgia, and like a modern Calig- 
ula produced from his pocket a small book which he pro- 
claimed contained the laws he proposed to administer. He- 
made false Imprisonments; discharged grand juries "whilst 
matter of felonies lay before them;" intimidated petit juries, 
and "in short, stuck at nothing to oppress the people.'* 
When at length an appellate tribunal was formed, the mag- 
istrates to be appealed from were the judges to be appealed 
to, which, to say the least, was not a promising condition and 
justified the very moderate criticism that "the administrators 
of such a policy should, in propriety, be invested with some 
suitable resemblance of character and equity." One grand 

18 



jury advised the trustees "that the said Thomas Causton 
by his office of storekeeper hath the dangerous power in his 
hands of alluring weak-minded people to comply with un- 
just measures; and also overcoming others from making 
just complaints;" and that "the known implacability of the 
said Causton, and his frequent threatening of such people, 
is to many weak-minded though well-disposed persons a 
strong bulwark against their seeking redress." A list of 
complainants, whose names fill three octavo pages looking 
like a census of the colony, forms a gruesome exhibit to the 
official presentment. 

But grand juries and petitioners were the least of the 
avenging spirits which began to creep fast upon the gay foot- 
steps of Mr. Causton. It was of his misfortune that, justly 
or unjustly, he had incurred the enmity of Dr. Patrick Tail- 
fer and in "A True and Historical Narrative of the Colony 
of Georgia in America," with a quotation from the fourth 
ode of Horace on the title-page, and a dedication and; 
preface of length and dignity, the facile pen of that far- 
off chronicler has preserved for all time an estimate of Mr. 
Causton and his associates expressed in language, to use 
the words of Mrs. Gamp upon a celebrated occasion, 
"such as lambs could not forgive nor worms forget." 
There was little left of colony, trustees, or the world 
at large when the doctor laid aside his pen; and this is the 
sketch he has drawn of Mr. Causton: "Whilst we labored 
under these difficulties in supporting ourselves, our civil lib- 
erties received a more terrible shock; for instead of such a 
free government as we had reason to expect, and of being 
judged by laws of our mother country, a dictator (under 
the title of bailiff and storekeeper) was appointed, * * * 
whose will and pleasure were the only laws in Georgia. In 
regard to this magistrate, the others were entirely nominal, 
and in a manner but ciphers. Sometimes he would ask in 
public their opinion, in order to have the pleasure of showing 
his power in contradicting them. He would often threaten 
juries, and especially when their verdicts did not agree with 
his inclination or humor. And in order to establish his ab- 

19 



solute authority, the store and disposal of the provisions, 
money, and public places of trust were committed to him; 
by which alteration in his state and circumstances he became 
in a manner infatuated, being before that a man of no sub- 
stance or character, having come over with Mr. Oglethorpe 
amongst the first forty, and left England upon account of 
something committed by him concerning his majesty's 
duties. However, he was fit enough for a great many pur- 
poses, being a person naturally proud, covetous, cunning, and 
deceitful, and would bring his designs about by all possible 
ways and means. As his power increased, so did his pride, 
haughtiness and cruelty; inasmuch that he caused eighteen 
freeholders with an officer to attend at the door of the 
court every day it sat, with their guns and bayonets, and 
they were so commanded, by his orders, to rest their fire- 
locks as soon as he appeared; which made people in some 
manner afraid to speak their minds, or juries to act as their 
consciences directed them. He was seldom or never un- 
covered on the bench, not even when an oath was admin- 
istered; and being perfectly intoxicated with power and pride, 
he threatened every person without distinction, rich and 
poor, strangers and inhabitants, who in the least opposed 
his arbitrary proceedings, or claimed their just rights and 
privileges, with the stocks, whipping-post, and loghouse, 
and many times put those threatenings into execution; so 
that the Georgia stocks, whipping post and log-house soon 
were famous in Carolina, and everywhere in America where 
the name of the Province was heard of, and the very thought 
of coming to the colony became a terror in the people's 
mind." 

Dr. Tailfer has remarks to make about other judges, 
but these he regarded as weaklings. Mr. Gordon was "of 
a very winning behavoir, affable and fluent in speech," and 
soon got the good-will of the people who began to lay their 
grievances before him. But just as they came to know him 
well and love him, Mr. Causton cut off his provisions 
"whereby he was obliged, after six weeks' stay, to leave the 
place." Another bailiff, Mr. Parker, according to Dr. Tail- 

20 



fer, was "a man who had nothing to support himself and 
large family but his day labor, which was sawing," and so 
he became dependent on the public store. On the same au- 
thority, he was a man of no education and was soon mould- 
ed to Mr. Causton's liking. Being a slave to liquor, he who 
plied him most with it (an attention which Mr. Causton 
never forgot) had him right or wrong on his side. Mr. 
Darn, who ascended the bench only to die, was crazy in 
body and mind; and his successor, Mr. R. Gilbert, could 
neither read nor write. In the Journal of the Trustees it 
appears that Lieutenant Colonel Cochran and Captain 
Thompson, late arrived from Georgia, were before the 
Trustees, and their views are thus noted: "That Mr. Hen. 
Parker, i Bailiff, is a tolerable magistrate; but it was a sur- 
prise and jest our appointing Gilbert the Taylor to be a 
magistrate. That there is not a man in the Colony fit to 
be a magistrate. That there is not a man in the Colony 
fit to make 3d Bailiff." It was of the irony of fate that Mr. 
John Fallowfield, who being a magistrate, yet sided with 
the people, was declared by the trustees for so doing to be 
a leader of malcontents, setting himself up as dictator and 
for these reasons summarily dismissed from oflice. 

Probably the full effect of Mr. Causton's administration is 
best illustrated by the typical cases cited by Dr. Tailfer. Mr. 
Odingsell appears to have been a rural gentleman from the 
neighboring province of Carolina; nervous as to tempera- 
ment, and uninstructed in the devious ways and strange sur- 
roundings of city life. The temptation to visit the metrop- 
olis of Georgia was too strong for him, and setting aside 
the natural caution of his disposition, and with the osten- 
sible object of seeing for himself how the colony succeed- 
ed, he disembarked upon what should have been hospitable 
shores. After a philosophic survey of such conditions and 
sights as were presented to his bucolic experience during the 
early days of his stay, he became venturesome and under- 
took to see Georgia by night. He was at once apprehended 
as a stroller and carried to the guard-house where he was 
threatened with the stocks and whipping-post that "being a 

21 



mild and peaceable man," the terror and fright threw him 
into a "high fever and strong dehrium;" and after lying in 
this "distracted condition" for days, crying out to all that 
they were come to take him to the whipping-post, he died. 

But not even a trivial consideration of the judicial history 
of Georgia is permissible without reference to the great 
and celebrated case of the King versus Watson. Exactly 
what Mr. Watson had done it is difficult to ascertain. One 
record would indicate that having incurred the displeasure 
of Mr. Causton, he was indicted for stirring up animosities 
in the minds of the Indians. The Journal of the Trustees, 
on the other hand, suggests that he was really guilty of mur- 
der in that he had induced one Skee to indulge in unlimited 
quantities of rum — enough to have killed two men, and 
which actually did bring Mr. Skee to a conclusion. But un- 
certainty as to the crime seems to have presented no obsta- 
cle to an indictment. At the trial Mr. Causton presided 
and acted in the capacity of Judge and witness. The jury 
having returned several verdicts which did not accord with 
the views of the court, was on each occasion remanded to 
their room, until in desperation it found Mr. Watson guil- 
ty of "using unguarded expressions," and recommended him 
to the mercy of the court as a lunatic. Mr. Causton, mould- 
ing the verdict to suit himself, sent Mr. Watson to jail, 
from which he was subsequently released on bail. Mr. Wat- 
son, the jury and the people fiercely assailed Mr. Causton 
for tampering with the verdict, whilst the trustees arraign- 
ed him for bailing a lunatic which they declared was itself 
an act of lunacy. To the frequent representations which 
were made by the people of the colony, the trustees sitting 
In their quiet office near the Old Palace Yard, Westmin- 
ster, turned a deaf ear, and through their secretary, Mr. 
Benjamin Martyn, expressed their displeasure with much 
the same indignant earnestness as was exhibited by Mr. 
Bumble when young Twist petitioned for his rights. 

But Mr. Causton got out of perspective when he began 
to encroach on the power and rights of the trustees. He 
might do as he pleased when the practical result was only 

22 



scaring Mr. Odingsell to death and locking up the bibulous 
Watson. When he became freehanded in the drawing of 
sola bills he was summoned home for trial. To the relief 
of the colony and of civilization, he died at sea, and that 
was the end of Mr. Thomas Causton. The system sur- 
vived him several years, but does not seem to have been car- 
ried on in the same magnificent way. Mr. Thomas Jones, 
for instance, was also "passionate and proud," and was a 
great stickler for Caustonian precedents. But he lacked 
the mentality of that distinguished man. In fact, it was said 
of him that he surpassed Causton in everything that was 
bad "without having one of his good qualifications."' 

NO LAWYERS BUT MUCH LITIGATION 

In this Lawyerless and Lawless Court the inhabitants 
had, as Bishop Stevens says, "to follow the old Gallic cus- 
tom and plead each man his own cause in person," even 
though there were one or two in the colony who knew some- 
thing about law. One is referred to as a "pretended law- 
yer," and another as having been "bred as a smatterer in 
law". (4 C. R. 61, 423; 5 C. R. 62, 183, 188; 7 C. R. 98.) 
Williamson is mentioned as having been "bred an attor- 
ney." He moved to Charleston, where Oglethorpe thought 
he had better remain because he could make more practic- 
ing there than in Savannah. Nothing more is said of him 
until 1740 when Stephens recites that "Williamson return- 
ed from Charleston and turned solicitor in a cause or two 
heard betwixt some of our Indian traders. But, being time- 
ly admonished, thought it safest not to appear as pleader, 
though he confidently affirmed that he had the Trust's 
leave to practice as an attorney." (4 C. R. 618, 431, 443; 
5 C. R. 177; I C. R. 41; 5 C. R. 257.) 

It seems, therefore, certain that during the government 
of the Colony by the Trustees there was no practicioner in ' 
Georgia and that the courts were not authorized to admit 
persons to the Bar. 

For a part of the time this afllirmatively appears from 
a statement made in 1745 by William Stephens that "all of 

23 



V 



the Magistrates of Fredereka had been summoned to Eng- 
land as witnesses in the case of Col. Cook against Gen. 
Oglethorpe. Aind as divers felonies had been committed 
in the County of Fredereka, and there can be no trial be- 
cause of the absence of the Judges, the officers in Savannah 
were in doubt as to whether they had jurisdiction and .... 
thought it expedient to take the opinion of some able lawyer 
as to how far they might safely proceed. We having no 
such gentlemen to advise us, and knowing that Captain Hor- 
ton, by direction from Gen. Oglethorpe frequently advises 
with Mr. Rutledge in intricacies of this nature, wherein the 
law is not clear, thought that his advice should be the rule 
to proceed by, rather than that such notorious crimes should 
go unpunished." (6 C. R. 144-146.) 

Indeed the absence of lawyers was given as one of the 
inducements for emigrating to the new colony. Those, how- 
ever, who were already there and suffering from the Trus- 
tees' mistakes took a very different view of this fact, as ap- 
pears from the "Narrative under Oath" signed by a major- 
ity of the male inhabitants of the colony. For it is there 
said "That the British Nation was deceived with the fame 
of a happy, flourishing colony and of its being free from 
that pest and scourge of mankind called lawyers — for want 
of whose legal assistance the miserable inhabitants were 
exposed to a more arbitrary government than was ever ex- 
ercised in Turkey or Muscovy." (i McCall, 54, 2 Ga.. 
Hist. Col. 204; 21 C. R. 326.)^ 

Having been all things to all men in all times, to the 
Trustees, the lawyer had come to be in the wilds of Geor- 
gia a plain and transparent Grecian horse, his thick sides 
swelling with painful possibilities for the peaceful Troy 
before whose gates he had been opportunely stayed. And 
thus it was solemnly concluded that Georgia could and 
would afford to do without lawyers, and incidentally, with- 
out law, taking its justice in drastic doses from a court which 
was at once lawyerless and lawless. It was a scoffing de- 
nial — the colonists in Savannah bragging that there were 
no lawyers there, and the staid Salzburger from the swamps 

24 



of Effingham lifting up his rejoicing voice that with them 
dwelt neither lawyers, Courts, nor Rum — a juxtaposition 
of terms, expressed with an irritating capital which, whilst 
doing great injustice to a sober calling, gravely reflected 
upon the habits and yearnings of the dweller in Yamacraw. 
When last heard from Effingham was still dry and Chat- 
ham wet.' 

But while there were no lawyers, it does not follow that 
there were no lawsuits. Indeed, the scanty records and 
Stevens' Journal contain an undue proportion of references 
to court proceedings. 

There are suits on notes, bonds, accounts, actions of 
trespass, ejectment and — no end of imprisonments for debt. 
The court even took cognizance of Ecclesiastical offences, 
and proceedings were instituted therein against Mr. Wesley 
for refusing communion to a member of the church and for 
similar charges, as though there was a complete union 
of church and state and as if the Town Court of Savannah 
had the jurisdiction of the Court of Arches in England. (4 C. 

But it was on the criminal side that business was most 
active, and as there was no practicing attorney the defend- 
ants represented themselves, the King being represented 
by the constable. Anyone who has ever seen a trial con- 
ducted by and before laymen will not be surprised to find 
that with the constable on one side and the defendant on 
the other, technical points were insisted on with vigor. For 
these early settlers did not seem to need the advice of an at- 
torney to make points in order to escape being whipped on 
the bare back or hung by the neck until they were dead. 

These criminal proceedings had all the common law ac- 
companiments. There was the usual "pious fraud" of find- 
ing that the value of the property was less than a penny, so 
as to reduce the offence below a felony. In one case a wo- 
man was convicted of bigamy and in order to save her life 
she was given the benefit of clergy. Such leniences, how- 
ever, were rare, for usually the convictions were sure and 
the punishment heavy. Standing in the pillory, sitting in 

25 



the stocks, whipping on the bare back were common, and 
at one session three men were convicted for murdei, and 
two hung, and all without lawyers — or perhaps because 
they had no attorney.'' 

LITIGATION WITH THE TRUSTEES IN ENGLAND 

But although the Trustees permitted no lawyer to prac- 
tice in Georgia, they themselves had occasion for their ser- 
vices in England, both in formal matters and in heavy liti- 
gation. The Charter required the Board to submit its ac- 
counts annually to the Lord High Chancellor, the Chief 
Justice of England, the Chief Justice of the King's Bench, 
and the Master of the Rolls. This brought the affairs of 
the Colony to the attention of Lord Hardwick, by many 
thought to be the greatest of the English Chancellors. He 
made a contribution to the fund and showed great interest 
in the colony. When the Trustees decided (3 C. R. 87) to 
abandon Savannah and make a new capital further south, 
they named it Hardwick, after him. Sir Joseph Jekyl, 
Master of the Rolls, and friend of Oglethorpe, also had 
occasion to examine the accounts and made contribution 
of 500 pounds, the largest single gift made to the Trust. 
(3 C. R. 63; 5 C. R. 252.) In recognition of the fact 
Jekyl Island was named in his honor and he thereby ac- 
quired the permanent fame that comes to those after whom 
rivers, mountains and Islands are called. 

But the Trustees were not solely interested in making 
reports to admiring judges. They were several times sued 
and Colonel Oglethorpe secured the adoption of a resolu- 
tion that they should "employ the Attorney General and 
Solicitor General in all cases where the Trustees had oc- 
casion to be represented in legal proceedings." ( i C. R. 
282, 285; 2 C. R. 150.) In pursuance of this resolution, 
Ryder, Attorney General, afterwards Chief Justice of Eng- 
land, and William Murray, Solicitor General, afterwards 
Lord Mansfield, were retained. 

There were four of these legal proceedings in England. 
We do not know who was counsel for the Trustees in the 

26 



case brought by Bosomworth in right of his wife, (Mary 
Musgrove-*) claiming that as an Indian princess she was en- 
titled to St. Catherine's Island, by virtue of the reservation in 
Oglethorpe's first treaty with her tribe. The first hearings 
were before the Privy Council in London. It was then re- 
mitted to the Governor and Council in Georgia and resulted 
in a decree that Bosomworth should receive a large sum, in 
payment of which St. Catherine's Island was ordered to be 
sold. (8 C. R. 85, 323.) 

The next case was brought against the Trustees, in the 
Court of King's Bench, by Rev. Mr. Norris, who claimed 
800 pounds to be due him for ecclesiastical services render- 
ed in Savannah. The Trustees admitted an indebtedness 
of 70 pounds. He recovered a verdict equivalent to $350, 
but the costs were $300. 

Another proceeding against the Trustees was heard in 
Parliament. Thomas Stephens, as the representative of a 
majority of the inhabitants of the colony, charged that the 
affairs of Georgia were mismanaged and the colony mis- 
governed. The matter was regarded as of such importance 
that a public hearing was had before the House of Com- 
mons which permitted Stephens to speak for the Georgians 
and allowed the Trustees to be heard by counsel. They se- 
lected William Murray, who was then in the height of his 
fame as a lawyer. He needed to put forth his best efforts, 
for the vote was exceedingly close, 77 being for, and 88 
against censuring the Trustees. It was, however, a techni- 
cal if not a moral victory, and the Earl of Egmont sardon- 
ically enters in his journal that "Stephens is to be brought 
before the House tomorrow on his marrow-bones and rep- 
rimanded from the chair," and on June 30, 1742, he enters 
(5 C. R. 640), "This day Thomas Stephens was according 
to order, brought to the Bar, where on his knees, the Speaker 
severly reprimanded him and it is ordered he be discharged, 
paying his fee." 

The last proceeding against the Trustees grew out of 
the fact that Georgia had passed an Act making it unlaw- 
ful for Carolinians to trade with Indians west of Savannah 

27 



without license. Carolina attacked the act as void. There 
was a hearing before the Board of Trade and Plantations, 
the predecessor of the modern Privy Council on an appli- 
cation for an order in the nature of an injunction to prohib- 
it the enforcement of the Georgia statute. Georgia was 
again represented by Murray and Attorney General Ryder. 
He had previously given an opinion that a Carolina stat- 
ute requiring Virginians to get a license to trade with In- 
dians was void as denying Virginians the right of an Eng- 
lishman to trade wherever he desired. This opinion was 
probably quoted against Ryder and must have stampeded 
the Georgia lawyers, including Murray. At any rate, Mr. 
Wesley, who was present as a witness in the case, entered 
in his journal: "Till twelve o'clock, the Carolina side 
was heard. Then our counsel (confused enough) was 
heard for Georgia . . . Murray made our defence, but so 
little to Mr. Oglethorpe's satisfaction that he started up 
and ran out." (Wright's Life of Oglethorpe, 172.) 

This ought to be some comfort to other lawyers to 
think that even Murray, the greatest lawyer of his day, 
could not always please his clients, nor always win his causes, 
for the judgment was in effect against Georgia. But the 
case is of three-fold interest — furnishing as it does an in- 
stance of a suit by one Colony against another before the 
Privy Council, where Colonial statutes, approved by the 
king, were nullified, because interfering with Inter-Colonial 
— ^or what we call interstate commerce. ** 

GEORGIA, A ROYAL COLONY 

On June 20th, 1752, just nineteen years and eleven 
months from the day that they had accepted the same, and 
organized with such sanguine hopes, the trustees having 
resolved that they could no longer provide for the defence 
and protection of the Colony, executed a deed of surrender 
of their charter to the Crown* and a quit-claim to all the 
vast territory between the Savannah and Mississippi, and 
"defaced the seal."" 

From thenceforth Georgia became a royal province. 
This surrender was for seven-eighths interest conveyed by 

28 



the Crown in 1732, and for one-eighth interest convey- 
ed in the same year to the Trustees by Lord Carteret. 

Subsequent to the surrender of the charter grants by 
Georgia's Trustees, King George the Second, on August 
6th, 1754, issued a commission to John Reynolds as Cap- 
tain-General and Governor-in-Chief over the identical ter- 
ritory as that contained in the grant to James Oglethorpe 
and other Trustees. 

On May the 4th, 1761, King George the Third com- 
missioned James Wright as Captain-General and Governor- 
in-Chief of the Colony of Georgia, the commission covering 
the same territory as that previously granted to Oglethorpe 
and other Trustees, and to Reynolds as Governor, except 
that the southern boundary extended from the Altamaha 
to St. Mary's River. About this period, to wit: on June 
26th, 1764, George the Third issued a commission to one 
William de Brahm as Surveyor-General of the southern 
district of North America, with instructions as to surveys 
desired to be made by the Crown, including the boundaries 
of the province of Georgia. In this survey Georgia's terri- 
tory was given as lying between latitude 30° 26' 49" to lati- 
tude 35° 30' — the north boundary being, according to that 
survey, 30' north of that now claimed by our state." These 
boundaries became of the greatest importance in the con- 
test with South Carolina referred to hereinafter. 

It was governor. Sir James Wright, who in 1773 com- 
plained of the Northern Colonists because "they take but 
little of our produce and drain us of every trifle of gold 
and silver that is brought here by giving a price for guineas, 
moidores, Johannes, pistoles and dollars far above their 
real and intrinsic value, so that we can never keep 
any among us." We see how early began the talk here 
of money of real and intrinsic value, copied by Blackstone 
in 1776, and how soon we had trouble about money; and 
that, although we had gold coins of other nations, includ- 
ing the pistole of John of Portugal (perhaps the only lucky 
John who ever wore a crown) and "the dollar of our dad- 

29 



dies," though bearing the stamp of Spain, we were not 
happy. We see how early money acquired the habit of not 
staying here but going North, and that sound money com- 
manded a premium in the markets. If we seek an explana- 
tion, we will perhaps find that we exchanged rice, corn, peas. 
Indigo, lumber, live stock and barreled beef and pork for 
what the Northern Colonists sent here, to-wit, rum, flour, 
biscuits and provisions, and we ate and drank so much as 
to throw the balance of trade the wrong way.^ 

THE GENERAL COURT AND ITS JUDGES 

England's experience with granting charters to Ameri- 
can colonies had not been satisfactory, and it had been de- 
cided that no others should be issued. When the new order 
was to be established in Georgia the King appointed Rey- 
nolds governor and gave him a Commission which in some 
sense served as a charter, for It imposed on him the duty of 
calling a Legislative Assembly and conferred upon him au- 
thority to constitute courts and define their powers. (Stokes' 
"Constitution of British Colonies in America," 115, 119, 
121.) The minutes show that on November 8, 1754 (7 
C. R. 28), "the Governor read to the council the King's 
instructions for erecting courts of judicature. But as the 
board had been informed that William Clifton, Esquire, 
appointed Attorney General for this Province, was daily 
expected here, they thought it proper to postpone further 
consideration of so weighty a matter until the arrival of the 
Attorney General." When he reached Savannah he was 
asked to prepare a plan for constituting the courts. On 
December 12, 1754 (7 C. R. 33, 38, 43), he presented a 
report which was adopted and is the very germ of our Ju- 
dicial system. It provided for the erection of a "General 
Court with like power and authority as is used and exercis- 
ed by the respective courts of King's Bench, Common Pleas 
and Exchequer In England" and for a separate court of 
Chancery to be held before the Governor and Council for 
determining all matters of equity. Instead of a belittling 
title like that of Bailiff which had handicapped the Town 

30 



Court of Savannah, this Commission went to the other ex- 
treme and called them Barons, it being provided that "for 
any crime (except Treason or Felony) every citizen should 
have free liberty to petition the Chief Baron, or any one 
of the Judges of the Common Pleas, for a write of habeas 
corpus * * * And in case the Baron shall refuse to grant the 
Writ, the said Baron or Judge shall incur the forfeiture of 
his place." (7 C. R, 29.) All of the unfinished business 
in the town court was transferred to this court (13 C. R, 
126), which seems to have had no very definite title, for it 
was referred to as General Court; Court of Oyer and Ter- 
miner; Court of General Sessions; Supreme Court; and Cir- 
cuit Court. (15 C. R. 528; 15 C. R. 235; 15 C. R. 365.) 
To preserve form and dignity, the Board ordered that "the 
Rules and Practices of the Courts of Westminister Hall 
shall be as strictly followed as heretofore as circumstances 
will admit." (7 C. R. 53. Stokes' British Constitution 
in America, 131.) 

All of this was the result of the work of William Clif- 
ton, Attorney General of the Province, the first lawyer 
authorized to practice in Georgia. 

He was a faithful officer, remaining in the Province 
and attending to his duties in person, instead of following 
the then usual course of appointing a deputy and dividing 
the fees. He had a short leave of absence in 1758, during 
which time Thomas Barrington, Esquire, acted as Attor- 
ney General pro tem. (7 C. R. 826.) On returning to 
Georgia, Clifton resumed his duties, and evidently gave 
great satisfaction. For when in 1764 he was appointed 
Chief Justice of Florida, then in control of the British, 
the Commons House of Assembly of the Province of Geor- 
gia (14 C. R. 147.) — "Resolved, That the thanks of this 
House be given to the Honorable William Clifton, Esquire, 
late Attorney General of this Province and now Chief Jus- 
tice of West Florida, for his upright conduct in his office 
as well as in all other public employments and that the 
Speaker do signify the same to him by letter." 

For several years after his arrival in Georgia, Attorney 

31 



General Clifton had refrained from qualifying as a mem- 
ber of the Council, but in 1757 he decided to assume the 
duties of that office and thereupon (7 C. R. 591, 592) sub- 
mitted a memorial to the Governor and Council in which 
he expressed a desire to be admitted to the Board, explain- 
ing that "on his arrival in the Province, finding a multipli- 
city of business arising from the appointing and establish- 
ing courts of judicature, and settling the practice thereof 
and otherwise (there being at that time but one other of the 
Profession in the Province), he did therefore decline tak- 
ing his seat at the Board." 

On the adoption of Clifton's Report In 1754 Noble 
Jones and Jonathan Bryan were appointed judges "during 
pleasure." (See Stokes' British Constitution In America 
(259), where their commission is set out In full.)" 

Noble Jones was the Colonel of the first Regiment rais- 
ed in Georgia ; while Jonathan Bryan was Captain of the 
first troop of Horse. As junior officers of a South Carolina 
regiment both had been with Oglethorpe in his expedition 
against St. Augustine. Dr. Noble Wymberly Jones, son 
of the Judge and Colonel, was one of the most active of the 
Georgia patriots before and during the Revolution and 
Jonathan Bryan, though nearly eighty years of age, was a 
member of the Council of Safety, and was described by the 
British Commander as "a notorious ring-leader of rebel- 
lIon."^« 

These Associate Judges were evidently to hold office 
until the King named a Chief Justice for the Province. 

His salary of 500 pounds was paid by Parliament, and, 
according to the custom of the time, there were also costs 
and fees which sometimes amounted to as much again. 
This 1,000 pounds was, considering the difference in pur- 
chasing power, equivalent to at least $10,000 in the pres- 
ent money; and as the custom was to fill the place with an 
EngHsh Barrister, the King — Miller (2 Bench & Bar 97), 
says Gov. Ellis — appointed William Grover, a graduate 
of Pembroke College, Oxford, and a Barrister oi the Inner 
Temple, London. 

32 



He remained in office until 1762, when charges were 
made against him because of his arbitrary and partial con- 
duct. The Bar recommended that he should be suspended 
by the Governor and Council until the King's pleasure 
could be known. There was a hearing and an order of sus- 
pension. Grover replied in verse — which was voted a scan- 
dalous attack on Governor Wright — and left the colony. 
(Jones' Hist, of Ga., 54.) 

He was succeeded by William Simpson, appointed chief 
Justice December 15, 1766. (9 C. R. 428.) 

And this brings us to the next Chief Justice, "Anthony 
Stokes; of the Inner Temple, London; Barrister at Law; 
and His Majesty's Chief Justice, and one of his Council 
in Georgia" as he describes himself on the title page of one 
of his books. 

"On March 23rd, 1769, His majesty was graciously 
pleased to appoint Mr. Stokes Chief Justice of Georgia, 
but as it was some time before the sign manual reached him 
he did not leave St. Christopher's until the 28th day of July, 
1769, and on the 26th of August following he arrived at 
Sunbury, a southern port in Georgia, some distance from 
the Metropolis. He therefore did not reach Savannah 
until some days after his arrival and was not sworn into 
office until the first of September, 1769." 

As you will see, he was a barrister, a practicing lawyer 
and, the records show, a man of integrity, courage and abil- 
ity. He was our first legal author and published a pam- 
phlet : 

"Directions for the officers of His Majesty's General 
Court and session of Oyer and Terminer and general Gaol 
Delivery of the Province of Georgia. Compiled by the 
Chief Justice, Savannah, 1771, 4 to 24 p."® 

THE PRACTICE OF LAW IN THE COLONY 

As we have seen in Williamson's case, the Colonial 
courts did not admit persons to practice, that power being 
exercised by the Trustees in London. But beginning with 
the King's Government in Georgia, the courts admitted per- 

33 



sons to the Bar. We do not know what were the terms 
of their admission. Stokes (p. 269) says that In the Colo- 
nies generally those who had read at the Inns of Court or 
had served clerkship in England were admitted on produc- 
ing proper certificates, but leaves it uncertain as to how 
those were admitted who had had no such preparation. ** 

The early province was blessed with the presence of 
legal advisers who had been called to the Bar at the Inns of 
Court, London. The duties of counselor and attorney were 
united In the same person, much to the disgust of Justice 
Stokes, who evidently considered "practice" In the making 
of a lawyer a great disadvantage, for he says: "The prac- 
tical part has so employed the attention of colonial advo- 
cates that few have leisure to attain to any considerable de- 
gree of knowledge, and the advocate who has the greatest 
fluency may sometimes be considered as the ablest law- 
yer." He Intimates, too, that the advocates were not averse 
to strife, because he says: "Most of the questions which 
arise In the colonies are founded In litigation and not in 
Intricacy." (269-270)'' 

It was not until 1754 that the Georgia Courts admitted 
attorneys to practice. In that year this power was exercised, 
as we learn from the fact that in the list of fees payable to 
the Chief Justice appears this entry: "For admitting every 
lawyer to practice, 2 pounds," — the fee bill also fixes the 
costs payable to Proctors, Solicitors In Chancery and Attor- 
neys of Common Pleas. The colony was prosperous, and 
attorneys were sufficiently numerous In Savannah In 1759 to 
be referred to as "the Bar." (8 C. R. 736, 751.) 

We do not know what were the terms of their admission 
In Georgia, but the English courts were authorized by 
act of 1729 (2 Geo. II, Chap. 23) to admit attorneys who 
had read 5 years. Barristers, however, were called to the 
Bar by the Inns of Court much as the graduates of Law 
schools without examination In court. 

The names of Thomas Burrlngton, Charles Watson, 
William Handley, William Woodruff, William Ewing, 
John Lucena, Alexander Wyley, Grey Elliott, James Box, 

84 



appear as attorneys in proceedings before the Governor and 
Council. The Colonial Records show that money was occa- 
sionally paid out by the colony for legal service; and the 
names of the colonial attorneys general: Charles Pryce, 
William Graeme and James Hume are thus preserved In 
the Appropriation Bills like flies in amber. 

Three of the four Colonial Governors attended the Inns 
of Court. William Stephens was a student of the Middle 
Temple and had occasion to use his legal training when he 
was made President of the Colony and presided in land cases 
and on appeals from the Town Court of Savannah. Gov- 
ernor Ellis read at Temple Court, and Sir James Wright, 
•a son of the Chief Justice of South Carolina, had also read 
at one of the Inns of Court. Both, therefore, had a train- 
ing which was valuable when they sat in the Court of Chanc- 
ery or presided on appeals from the General Court.** 

These colonial lawyers knew that "many mickles make 
a muckle," and that, from their standpoint, it was better 
to charge something for everything rather than to include 
all in a lump sum. They had their fee bill, copied no doubt 
largely from that in force in England, where every service 
had its price. Under the Colonial Cost Bill there was a re- 
tainer fee of 7 shillings; every time an attorney filled up a 
writ he was paid 2 shillings, and one shilling more for a 
copy to keep. Whenever he drew a declaration, replica- 
tion, rejoinder, demurrer, joinder in demurrer, or other 
pleading, his fee was 2 shillings, with 4 pence for every copy, 
and I shilling additional for signing his name; for every at- 
tendance at court his fee was i shilling, and for every mo- 
tion or argument after his appearance 2 shillings; he was 
paid for his brief and for striking the jury 2 shillings each. 
In fact, he charged for everything he did, for everything 
he said, for everything he wrote, for everything he copied, 
and then for everything he signed, all of which was charged 
in the bill of costs and paid by the losing party.^* 

In Chief Justice Stokes' Narrative is an account of a con- 
troversy with the Bar over a Rule that "if an Attorney be 

35 



absent when his case was called, he should not be reddy un- 
til he paid 20s. to the use of the poor of the Parish, and 
as some of the gentlemen of the Bar doubted the Court's 
authority to make such a rule, he produced a similar Rule 
of the King's Bench in England, whereupon the Counsel 
were of the opinion that the precedent producd justified the 
rule." (12 C. R. 331, 345.)'' 

COLONY DIVIDED INTO PARISHES 

When the trustees originally colonized Georgia, they 
established only one county therein, the county of Savannah. 
In 1 74 1 the county of Frederica was established. These 
counties were divided into numerous districts. By the Co- 
lonial Act of 15th of March, 1758, the country between 
the Savannah and Altamaha, including the islands as far 
south as St. Simon's, were divided into eight Parishes. To 
give their boundaries, as laid down in the Act, would be 
too tedious. The territory between the Savannah and Ogee- 
chee, from the coast to the country surrounding Augusta, 
was divided into the Parishes of Christ Church, St. Mat- 
thews, St. George and St. Paul, stretching in this order from 
the sea to the Indian line. South from Ogeechee to the Alta- 
maha, in like succession, stretched the Parishes of St. Phil- 
ip's, St. John's and St. James. Frederica and the two is- 
lands of St. Simon's formed the Parish of St. Andrew. 
When the country between the Altamaha and St. Mary's 
was added to Georgia, the Turtle, Little Satilla and Great 
Satilla rivers formed dividing lines for the four new Par- 
ishes of St. David, St. Patrick, St. Thomas and St. Mary, 
which in order, reached from the Altamaha to the Florida 
line.* 

THE SOUTH CAROLINA GRANTS 

By the peace between Great Britain and Spain in 1763, 
the former acquired the Floridas. The country between the 
Altamaha and St. Mary's was added to Georgia, and her 
Governor ordered to assume jurisdiction over the same. 
The original province of Georgia extended only to the Al- 
tamaha on the South, and South Carolina under the llm- 

36 



its fixed by her original charters claimed jurisdiction over 
this region, South of that river. The contest with the Span- 
iards had heretofore forbidden any exercise of actual au- 
thority. As soon, however, as Great Britain acquired the 
Floridas, and established their Northern boundary, at the 
St. Mary's and thirty-first degree of North latitude, before 
learning the pleasure of the Crown as to this country be- 
ween old Georgia and the Florida line. Governor Boone, 
of South Carolina, by virtue of the rights claimed by that 
province, proceeded to grant to various parties, tracts of 
land in this new country south of the Altamaha. A stormy 
correspondence ensued between Sir James Wright, then 
Governor of Georgia, Governor Boone, in South Carolina, 
and the bflicials in England. The practice was stopped by 
the British Government and the convention of Beaufort, in 
1787, settled the dispute in Georgia's favor. By an act of 
25th March, 1765, a time was fixed within which these 
grants should be proven and recorded in Georgia, or be 
barred. 

Some of the "Carolina Grants" as they were called, are 
registered in the Secretary of State's ofiice and some of the 
titles in question draw their origin from the province of 
South Carolina. While commenting hereon, it may be no- 
ticed that some few claims were also made to lands under 
grants emanating from the Lords Proprietors of Carolina; 
notably, one made by the heirs of Sir William Baker to 
twelve thousand acres of land. Some of this land had been 
granted to the soldiers of Oglethorpe's regiment. McCall, 
in his history of Georgia, says that the heirs of Baker suc- 
ceeded in their claim, and the soldiers had to re-purchase 
from them.* 

THE FORMS AND CONDITIONS OF THE GRANTS 

The quiet gained for the province of Georgia by the re- 
moval of the menace of the Spanish hostilities from her 
southern border, coupled with the availability of her unlo- 
cated land, brought many settlers to her soil. The in- 
crease of the business of the land office was considerable. 

37 



It will be interesting to note the forms of grants then 
in use in the province. All titles sprung from the Crown 
a/id were held in fee simple, and in free and common so- 
cage. 

The town lots were granted with all the preciseness and 
verbosity of the old conveyancing, to the grantee, he "yield- 
ing and paying for said lot" "yearly, and for every year, 
one peppercorn, if demanded." 

The conditions of the grant required the building of a 
house (as prescribed) within two years, upon forfeiture of 
one pound sterling per annum for failure so to do. If the 
house was not built within ten years, the grant was forfeit- 
ed. The grant specified that it was to be void unless regis- 
tered in the Register's office, "and a docquet thereof also 
entered in the Auditor's office" within six months from its 
date. 

The grants to farms were drawn in the same old style, 
enumerating all of the appurtenances granted including the 
"fishings," and also the "privilege of hunting, hawking, and 
fowling." 

To the Crown were reserved all white pine trees and 
the tenth part of mines of silver and gold. The rent reserv- 
ed was two shillings for every hundred acres, to commence 
at a given time, usually one or two years after date. 

The grantee was further bound, within three years, to 
clear and work three acres of arable land, or clear and drain 
three acres of swamp, or drain three acres of marsh for 
every fifty acres of "plantable" land in the tract. Within 
a like time he must put on every fifty acres accounted bar- 
ren, three neat cattle, or six goats, or sheep, and keep them 
there until three acres for every fifty was improved. Some 
grants contained this additional condition: If any of the 
tract was stony, unfit for tillage or pasture, the grantee was 
to begin within three years to employ one able hand, for 
every one hundred acres, "in digging any stone quarry or 
coal, or other mine," and continue to so employ such hand 
for three years. This was sufficient cultivation for said 
one hundred acres. 

38 



Every three acres cleared, worked or drained redeem- 
ed fifty acres from the operation of these conditions and left 
only the balance of the tract liable to forfeiture for their 
breach. A proportionate amount of cattle and stock could 
also be removed from the tract and (if the grant contained 
such condition) any like quantity of quarrying and mining 
stopped as each three acres was fully reclaimed. If the rent 
reserved remained due and unpaid for one year, and no 
distress could be found on the premises, the grant reverted. 
The requirement for registry within six months Is also pre- 
scribed. 

These grants were in the form of deeds by way of bar- 
gain and sale, and the provision for registry, or rather en- 
rollment, was that prescribed for such deeds by the Statute 
27, Henry VIII., Chapter 16. Operating as it did In the 
place of livery of seizin, it differed from our registry stat- 
utes by being requisite to the validity of the deed, which un- 
less enrolled within the time prescribed became void. The 
deed, by bargain and sale, having superseded all other forms 
of conveyance, the provision for enrollment became, by 
modification, the registry system extending so generally 
throughout the United States, and this will account for the 
fact that this country preceded England in the adoption of 
a general registry of conveyances of land. 

The transfer of property between Individuals was gen- 
erally made by lease and release, or by deeds of bargain 
and sale, especially by the first method. By the Act of 
1760, the wife might waive her dower, otherwise she was 
not debarred by the conveyance or mortgage of her hus- 
band. The Act allowing such waivers and the form pre- 
scribed survives Intact in Section 4204 Park's Annotated 
Code. By an Act of 1755 all conveyances of realty or per- 
sonalty were required to be recorded, if executed In Georgia 
or South Carolina, within three months; if In Europe, with- 
in a year and a day; and if in the West Indies or any part 
of America north of South Carolina, within six months. If 
this was not done, the Instrument was Inferior to younger 
instruments properly registered. This changed the enroll- 

39 



ment necessary to validity of the deed into registry affect- 
ing only its priority. Wills, unless registered within three 
months from testator's death, were void, except those made 
in Europe, for which a year and a day was allowed. By 
the Act of 1768 all conveyances and mortgages of realty or 
personalty theretofore made were to be registered within 
certain times, and all such instruments made in the Province 
of Georgia, if recorded within ten days after their execu- 
tion, should be deemed the first mortgage or conveyance 
over any older one not duly recorded. 

By an Act of 1767, all suits to recover realty must be 
brought within seven years from the time of the right of 
entry, or they were barred. Married women, infants, luna- 
tics and persons beyond seas were excepted and allowed 
three years after their disabilities were removed. 

A second mortgagee was permitted to redeem the first 
mortgage. If the first mortgage had not been made known 
to him in writing by the mortgagor before the second mort- 
gage was made, the mortgagor forfeited his equity of re- 
demption. 

No deed of any sort was impeachable for want of form 
or for want of attornment, livery of seizin or enrollment, or 
because made by assignment or endorsement on another 
deed. Such defects could be cured by showing that if the 
deed had been executed as claimed, the grantor could have 
conveyed good title. In fact, the Provincial laws seemed 
aimed at two points: First, to prevent the want of form 
invalidating where the purpose and right was clear. Sec- 
ond, to cause a memorial of record of all transfers of lands 
or chattels to be promptly made, that written notice might 
exist and fraud be prevented. It was a wise policy, which 
should have been improved upon and aided, rather than 
departed from in our later law. 

The common law, except when altered by statute, reg- 
ulated the character of estates which might be created, their 
dissolution, transfer and several incidents. 

In 1773 the peace with the Indian tribes was assured, 
and their title to a large tract of country south of the 

40 



Broad river extinguished, by the treaties made at Augusta. 
Active preparations were made to settle this country, when 
the advent of the Revolutionary struggle for a time inter- 
rupted the course of internal development.* 

COLONIAL LEGISLATION 

On January 24th, 1755, the real work of law-making 
began; evidently with a view of impressing the populace 
and shutting off discussions as to its power, one of the first 
acts Imposed penalties upon "any person who shall declare 
that the Acts of the General Assembly of Georgia are not 
of force." At this session laws establishing the militia, 
fixing the rate of interest, preventing fraudulent deeds, 
and regulating fences, were the first feeble beginnings of 
that vast and ponderous mass of Statute law since enacted. 

But even after the Colony began to pass laws, there was 
no one by whom they could be published, so that the pen 
had to do the w^ork of the press. In 1762 an act was passed 
"making provisions for printing the laws of this Province 
and for encouraging a printer to set up a printing-press in 
the same," the preamble reciting that "whereas the laws 
have not hitherto been well known, and because printing 
is the quickest and easiest method of publishing them; 
and whereas, there has been no printing-press in the Pro- 
vince, but all public transactions have been published by 
handwriting." James Johnson was elected Printer of the 
Laws, at a salary of one hundred pounds per annum, and 
at once set about collecting the acts which had thus been 
"published by handwriting" during the preceding seven 
years. 

He printed them separately, sometimes printing only on 
one side of the sheet, sometimes on both; and these undated 
and separate acts were distributed like handbills, and, of 
course, lost. But at least three persons made partial col- 
lections of these scattered papers, and bound them with the 
pamphlets containing the annual session laws published up 
to 1799. These leaves and pamphlets, thus bound together 
and preserved, constitute the only existing published rec- 

41 



ords and laws passed prior to 1799. Of course the annual 
pamphlets were very small and insignificant, frequently 
containing less than a dozen pages; but what they lacked in 
size they made up in a sounding and grandiloquent title — 
that of 1762, for instance, reading as follows: 

"ACTS, 

passed by the General Assembly at a session begun and hold- 
en at Savannah, on Wednesday, the eleventh day of Novem- 
ber, Anno Dom., 1761, in the year of our sovereign Lord, 
George the Third, by grace of God, of Great Britain, 
France and Ireland, King, Defender of the Faith, and so 
forth; and from thence continued by several adjournments 
to the 4th day of March, 1762, being the second session of 
this present Assembly." Savannah. Printed by James 
Johnson." 

Considering that other colonies had not only published 
their annual session laws, but, in most instances had made 
compilations or abridgements of their statutes at large, the 
utter absence of published statutes for the Colony of Geor- 
gia is remarkable. It Is more remarkable that, after atten- 
tion was called to the omission, and a law passed authorizing 
their publication, nothing was done to correct the evil.'' 

In the colony of Georgia the fee system ran wild. The 
Act of 1773 for "Settling Fees" covers thirty pages in the 
"Colonial Acts." We smile at the toy republic of San Ma- 
rino, with its standing army and its tiny public debt, but the 
youthful colony of Georgia, with a population smaller than 
many of its counties today, provided in this Act for fees to 
the Governor, Secretary, Clerk of Council, Messenger of 
Council, Doorkeeper of Council, Messenger of the Upper 
House, Clerk and Messenger of the Common House, Chan- 
cellor, Master in Chancery, Register in Chancery, Solicitor 
in Chancery, Chief Justice, Attorney-General, Clerk of the 
General Court, Clerk of the Crown and Peace, Provost 
Marshal, Judge of Admiralty, Marshal of Admiralty, Reg- 
ister of Admiralty, Advocate-General, Public Treasurer, 
Powder Receiver, Coroner, Comptroller, Notaries, Auditor 
General, Clerk of the Church of England, Sexton, Crier 

42 



of Court, and our old friends the Justices of the Peace and 
Constables. 

Evidently, like some of our new regiments, which con- 
sist altogether of majors and colonels, every Inhabitant of 
the Colony had an office, and some of them must have had 
two. No matter how insignificant these positions sound, 
they were decidedly worth having. The Sexton was paid 
2 shillings for digging a grave and 2 shillings for filling it 
up, besides i shilling for ringing the bell. The Clerk of 
the Church got one shilling for attending the funeral, and 
a like amount for attending every marriage and christening. 
But these lucrative positions were nothing to that of the 
Crier. He got a fee for every case that was tried, whether 
he had anything to do with it or not. He was paid for 
every Avitness who was sworn, and for every non-suit that 
was granted, and also for every verdict which was taken, 
and the long list of emoluments, to which he was entitled, 
winds up as follows: "From every attorney at the end of 
each court and sessions, and from the prothonotarles 
one shilling." This looks very much like a legalized tip.' 

There were many acts passed for the porpose of raising 
funds for His Majesty, occasionally by Imposing a duty on 
shipping or fixing fees and dues, but mainly by taxing land 
under a system which practically remained In force until 
1840. But It was wholly at variance with our Ideas. The 
present doctrine is that all taxation should be ad valorem. 
The early statesman thought exactly the opposite, and 
taxes were specific. Land was divided into three classes, 
such as swamp land, pine land, oak and hickory land, and 
this subdivided into that of the first and second quality; 
sometimes It was again subdivided into the land between the 
Florida line and Savannah, between Savannah and Rae's 
Creek, and between Rae's Creek and the Tennessee line; 
then it might be again subdivided into land within one mile 
of the river and land more than a mile from the river. It 
was taxed so much per acre regardless of Its market value. 
For example: The state laid a tax of 4 shillings on every 
100 pounds, and then, relieving the taxpayer's conscience of 

43 



the burden of fixing values, the Act proceeded to assess cul- 
tivated lands at 4 pounds per acre ; pine barrens within three 
miles of a town at 15 shillings; all good oak and hickory 
land from the mouth of McRae's Creek to Broad River and 
within one mile of the Savannah River at 15 shillings. A 
poll tax of 4 shillings, afterwards 31^ cents on every white 
person, and 2 shillings on slaves; 9 shillings on every pleas- 
ure carriage; 50 cents on every lawsuit; i pound on every 
free negro and the same on every lawyer.^ 

The salary of the Governor was fixed at 1,000 pounds 
with perquisites amounting to 319 pounds more. The rev- 
enue applicable to the support of the Provincial Government 
was raised from the King's quit rents, and by an annual tax 
on houses, lands, negroes, money at interest, stock in trade, 
and specified articles." 

Every act of the Colonial Assembly was provisional. It 
required the royal assent to become a law. Each had a pre- 
amble stating briefly the necessity for its passage, with the 
following form of enacting clause : We therefore humbly 
pray his most sacred Majesty that it may be enacted, and 
be it enacted by the Governor, Council and Assembly, of 
this, his Majesty's Province of Georgia, and by the author- 
ity of the same; That, etc." What favor these humble pe- 
titions in the enacting clause too often met with is shown 
by the fact that the very first charge against the King in the 
Declaration of Independence is that "He has refused his 
assent to laws most wholesome and necessary for the pub- 
lic good." 

The Colonial Legislatures had much less confidence in 
their wisdom than ours. Every law was regarded as more 
or less an experiment. They were not expected to be per- 
manent. Each Act, instead of concluding, as ours do, that 
"laws in conflict are repealed," usually wound up with the 
provision that "this Act shall continue in force for two 
years, and from thence to the end of the next session," and 
occasionally a sort of omniumi-gatherum Act would be pass- 
ed "for continuing the several laws of this Province which 
are near expiring," and, instead of making them permanent 

44 



even in this sort of Act, concluded by providing "These 
Acts shall severally and respectively continue and be furth- 
er in force during the term of one year and thence to the 
end of the next session." 

This plan may have been resorted to at first for the 
purpose of having something for the little Assembly to do. 
For, while the early Legislature had no great subjects with 
which to deal, it heroically attempted to make up for the 
deficiency by diversity. It passed separate divorce bills, un- 
til wearied with the process, wholesale separation was at- 
tempted, and sometimes as many as twenty-five couples were 
divorced in one bill. It pardoned criminals; it passed bills 
to authorize lotteries for raising money to build churches; 
to establish a library for the University; to build manufac- 
turing establishments; and one Joseph Rice, of Savannah, 
was authorized to establish a lottery to raise $10,000, on his 
representation to the Assembly "that he had in his posession 
watches and jewelry which he could not dispose of in the 
regular course of his profession as a watchmaker." 

The General Assembly would pass laws for internal im- 
provements : for laying out roads; establishing stage lines; 
taking the census; for selling the glebe lands. It adopted 
stay laws, and expressed its opinion of public men.^ 

The harshness or leniency of the administration of crimi- 
nal affairs is the surest index to the condition of a people, 
and in truth the most surprising features of the early coloni- 
al life are found in these Criminal Statutes. It is possibly 
not correct to say in the Criminal Statutes, because very 
few were enacted. Until 1816, the Criminal Law of 
England was of force in Georgia almost without a change 
or amendment. The definition of crimes and all the Crimi- 
nal Statutes, the methods of procedure and every peculiarity 
of the English law were rigorously followed. It has been 
decided that we have no Common Law crimes in Georgia; 
if so, it must be because the adoption of a Penal Code is 
construed to repeal all criminal laws not therein contained, 
for until 18 16 we had absolutely nothing else. 

The rule as to the corruption of blood as a result of 

45 



felony must have been recognized. There appears to be 
no record of forfeiture of property upon conviction of 
crime, but the provisions of the Act on the subject of 
"Gouging and Biting" recognize that such forfeiture re- 
sulted. After reciting that "nothing more forcibly marked 
the barbarity and ignorance of a country than the savage 
custom of gouging and biting"; this Act provides that for 
"the first offence the party convicted should pay a fine, and 
stand in the Pillory not exceeding two hours; but, if unable 
to pay a fine, he should receive lOO lashes on his bare back 
and be set at liberty. For a second offence, he should be 
deemed a felon, and suffer death without Benefit of Clergy; 
Provided that said attaint should not extend to corrupt the 
blood, forfeiture of dower, or the offender's goods and 
chattels."^ 

If biting and gouging did not "mark the barbarity and 
ignorance of a country," the punishment prescribed for the 
offense certainly did. 

In 1793 the punishment for counterfeiting, forging, and 
horse stealing, was death without benefit of clergy. 

As late as the year 1809 horse-stealing was punished, 
for the first offense, with thirty-nine lashes on the bare back, 
and three several days, and on each day a stand in the pil- 
lory of one hour, and in addition imprisonment for from 
twenty days to one month. For the second offense, the 
punishment was death, without benefit of clergy. ^^ 

Existing conditions call for the enactment of laws. It 
has, therefore, become trite to say that the history of a 
people may be written from an examination of its laws. 
Even if the historian had said nothing upon the subject, we 
would be able to draw a picture of the dangers and unrest 
of the population from the frequent laws for the regula- 
tion of the militia, establishment of powder magazines, and 
what appears on the subject of weapons. One-third of the 
time of our courts is today taken up in punishing men for 
carrying and using weapons. Time changes, — in 1766 it 
was enacted that "if any male person should attend church 

46 



without carrying with him a gun or a pair of pistols in good 
order and fit for service, with at least six charges of powder 
and ball, or shall fail to take such gun or pistol with him to 
his pew or seat, he shall be fined ten shillings." (Watkins, 

I57-) 

Judging from the statutes, we would infer that bear- 
baiting and bull-baiting were not infrequent; that deer- hunt- 
ing in the night was a euphuism for cattle-stealing (Coloni- 
al Acts of Ga., 258), and that the oppressor of the poor 
had already made his appearance, since it was necessary to 
make an assize of bread. The four-penny loaf was to 
weigh three pounds, if flour sold at ten shillings. If flour 
was twenty shillings, the loaf was to weigh one pound five 
ounces, and so on, the price varying both according to the 
price of flour and the quality of bread. The Act then 
elaborately provided methods to prevent the fraudulent 
adulteration of flour. It allowed a Justice of the Peace to 
enter a bake-shop, search for and weigh bread, and if he 
found any under assize to confiscate It to the use of the poor 
of the parish. 

Oglethorpe had founded this colony in the interest of 
those who had not been able to pay their debts In England, 
but a change of climate does not seem to have effected a 
change of habit, or possibly it may have been with them as 
it is now — and was with the wicked servant who, discharged 
from liability himself, took his own debtor by the throat, 
saying, "pay me that thou owest." At any rate, the Digest 
(Watkins) bristles with Acts providing for the payment 
of small debts, for the support of those imprisoned for debt, 
and with others making it penal for the owners of ships to 
carry off debtors in their vessels. From the frequency with 
which this latter Act appears one would suppose that the 
poor debtor, having left England to escape those whom he 
owed there, no sooner landed in the new colony than he 
found it expedient to put back again to elude his American 
creditors. 

There is one still more curious law on this subject of 
debts. In 1766 it was enacted that "if any person should 

47 



give credit to or trust any seaman for any sum exceeding 
five shillings, he, she or they so giving credit to or trusting 
such seamen shall for every offense lose the money or goods 
so credited or trusted." We do things better now, for we 
manage "to lose the money or goods so trusted" without the 
assistance of the Legislature,^ 

When we read of the horrors of the debtor's prison, we 
sicken at the thought that such things ever could have been. 
And yet there was a time when imprisonment for debt, with 
all its English rigor, prevailed in the colony of Georgia. In 
the year 1766, a measure of alleviation was adopted, when 
an act was passed for the relief of debtors who might be 
confined in jail and were unable to support themselves dur- 
ing their confinement. By it the debtor was allowed, on 
petition to the court and notice to creditors, to surrender 
whatever property he might have and take a prescribed oath. 
If the creditor insisted on his being detained, and agreed to 
pay a named sum for his support, the debtor was not dis- 
charged; If the creditor refused to make the agreement, 
the debtor was to be discharged. But the act did not apply 
if the debtor's trade or occupation could be carried on, and 
he could find employment, within the jail, by which to earn 
a subsistence. 

By the act of 1762 all persons were compelled to attend 
divine worship, and the third division of the Penal Code of 
1 8 16, consisted of "Crimes against God." They were de- 
fined to be "Denying His existence, or a future state of re- 
wards and punishments," and they were punished with being 
incapacitated to give testimony in a court of justice, or of 
serving in any office of honor, profit or trust In this State. 
In the present Code there is no trace of the fetters that 
bound the minds of men for centuries; there is no trace of 
the pillory, the lash, the bare back; nor is there a place 
in it for mention of the debtor's prison. We have grown 
away from those darksome things and they exist now only 
as a burthen upon the memory. 

It is only fair to remember that the cruel severity of 
these laws and customs was the high-water mark of the 

48 



condition of the people in all departments of thought and 
life. The doctors were tapping the fountain of life with 
leech and lancet; the theologians stood just behind them 
with a salvation chance fixed at about one-half of one per 
cent; the reaper and binder, the sewing-machine, and even 
the patent churn, were unheard of. As to the railroad, it 
seemed but a dream of the possible, as will appear by the 
following facts : 

In the year 1800 the sole and exclusive right of running 
a line of stage-carriages for the conveyance of passenges 
and their baggage between the city of Savannah and the 
town of Augusta was vested by legislative grant in three 
persons. The right comprehended all the different routes, 
and the grantees were required to run the stage-carriages at 
least once every week between the two places. ^^ 

Of course, there were many laws on the subject of in- 
spection of tobacco and indigo, but there is only a reference 
to "Cotton" until the year 1803, when a most curious 
statute was passed. There is a current saying that exclusive 
of its fiber cotton is worth cultivation for its by-products 
alone. The cotton-seed-oil was used for man, but the hulls 
and meal are now regarded as the very best food known 
for cattle, and with what was once a refuse the cattle on a 
thousand hills may be made seal fat. Yet, in 1803, the 
Legislature passed "An Act to compel the owners of cotton 
machines to enclose the same, and in Particular Situations, 
to remove the seeds therefrom." The "gin" was then gen- 
erally called a "cotton machine," and it was provided that 
where such "cotton machines" were located in a town, the 
owner should enclose the seed in such manner as would effec- 
tually prevent all stock from eating thereof. The owner 
was also required to secure and keep the seed dry, and to re- 
move them at least once a week, so as to prevent all un- 
wholesome effects resulting therefrom, and from the stench 
and vapors arising from the seed in a putrid state, and 
further must enclose them in such a "manner as to prevent 
the neighbors' stock from feeding thereon." Speedy reme- 

49 



dies were provided for collecting the penalty, and the Justice 
of the Peace himself was subject to be fined if he neglected 
to enforce this law. This Act has never been repealed, 
except by the "Act of Dry Rot." But who can say how 
many millions upon millions have been lost and destroyed in 
the throwing away of the by-products of the cotton plant. ^ 

THE BEGINNING OF THE CONFLICT 

The formula of the American Revolution was that there 
should be no taxation without representation. In December, 
1768, the Commons House of Assembly of the Province of 
Georgia passed a resolution expressing adherence to this 
theory of taxation in a resolution wherein they said: 

"At the same time, with inexpressible concern, we much 
lament that by the imposition of internal taxes, we are de- 
prived of the privileges, which, with humble deference, 
we apprehend to be our indubitable right, that of granting 
away our own property, and are thereby prevented from 
a ready compliance with any requisition which your Majesty 
may please to make, and which, to the utmost of our small 
abilities, we have hitherto most cheerfully obeyed." 

In I7<69, the colony of Georgia gave striking expression 
to this theory of the right of taxation by refusing to levy a 
tax upon the four parishes between the Altamaha and the 
St. Mary's acquired in consequence of the Treaty of Paris 
at the close of the French and Indian war, upon the ground 
that these parishes were without representation in the Colo- 
nial Assembly, resolving: 

"That, under the circumstances, unless your Excellency 
coincides with us, we dare not impose a general tax, knowing 
with what abhorrence every member of our community holds 
the idea of a partial representation."" 

How the subject of taxation has shaped the destiny of 
our Country, every student of history knows. Indeed "Tax- 
ation without representation," was one of the prime causes 
that brought about the American Revolution. The flame 
kindled by the Stamp Act of the British Pariament was soon 
fanned into that Revolution, which finally resulted in our 

50 



independence and the establishment of the Government of 
the United States. 

A very interesting account of the arrival of the first 
stamps issued under that Act in Georgia is given by Mr. 
McElreath in his admirable work on the Constitution of 
Georgia, as follows : 

"When the stamps arrived (at Savannah), there were 
in the port between sixty and seventy vessels, waiting for 
clearance, which could not be obtained on account of the 
refusal of the people of the colony to allow the use of the 
stamps necessary to give validity to their clearance papers. 
But the necessity for clearing the port seemed so urgent that 
the people finally consented to allow the use of the stamps for 
this purpose, but for none other. Their use, even for this 
purpose, was greatly resented by the people of South Caro- 
lina. Georgia was condemned as a 'Pensioned Government,' 
which had 'sold her birthright for a mess of pottage, and 
whose inhabitants should be treated as slaves without cere- 
mony.' It was resolved that no provisions should be 
shipped to 'that infamous colony,' that every vessel trading 
there should be burnt; 'that whosoever should traffic with 
them should be put to death.' These inflammatory words 
were not an exaggeration of the feeling of the people of 
South Carolina, for two vessels, about to sail from Charles- 
ton to Savannah, were captured and taken back into port 
and destroyed with their cargoes."^* 

Benjamin Franklin, during the controversy over the 
Stamp Act and afterwards, was repeatedly elected by the 
Commons House of Assembly "to sollicit the affairs of this 
province in Great Britain." He was paid a salary of lOO 
pounds and as an expression of the appreciation of his ser- 
vices the State afterwards made him a grant to the land to 
which he refers in his will. 

Just before the Revolution the Attorney-General of the 
Province applied for Writs of Assistance. The record is 
most interesting: 

51 



"At an adjournment day of April Court, holden at 
Savannah in the said Province, on Monday the 3d day of 
May, in the year of our Lord one thousand seven hundred 
and seventy-three, in the thirteenth year of his Majesty's 
reign. 

"present 

"The Chief Justice, Mr. Justice Jones, and Mr. Justice 
Butler. 

"Mr. Attorney General on behalf of the Commissioners 
of the Customs in the British Colonies in America, applied 
to the Court for writs of Assistants to be granted to the 
Officers of the Customs for the ports of Savannah and 
Sunburry: there honors the Judges were of opinion as fol- 
lows; viz. his honor Mr. Justice Butler, that as he appre- 
hended there was not an occasion for them at present, he 
was of opinion that the same should not be granted, not 
until there was a necessity for them; Mr. Justice Jones 
alleged, that as he had not come prepared in the matter, 
not being apprized of such intended application, could not 
give any opinion thereupon; and his honor the Chief Justice 
(Stokes) was of opinion, that the said writs of Assistants 
should be granted." 

While Chief Justice Stokes was presiding at Savannah, 
the Georgia Provincial Congress prohibited attorneys from 
proceeding in any civil action and Stokes announced that 
"if any lawyer should delay his client's cause under pretense 
of the said Resolution the Court would strike such attorney 
off the roll." This brought on a conflict of authority, in 
which the Congress threatened to take action against Stokes 
if he enforced the rule, to which, however, he adhered and 
ordered his decision to be published in the paper.® 

In the proceedings of the Council of Safety just prior 
to the Revolution, appears a resolution reciting that it was 
rumored that all attorneys who sympathized with the pro- 
ceedings of the late Congress had been stricken from the roll 
by the Chief Justice, and a committee was appointed to ascer- 
tain whether or not the rumor was well founded. Investiga- 

52 



tion demonstrated that the rumor was without foundation.^* 
Stokes was several times arrested by the Americans and 
at last obtained permission to leave the State with his 
family, bearing with him a letter signed by John Wereat, 
who himself subsequently held the office of Chief Justice 
of the State. It was indorsed by Gov. Archibald Bulloch 
and acted as a "safe conduct." 

"I am sorry," he wrote, "that this Province is deprived 
of so upright a magistrate as our late Chief Justice and sin- 
cerely wish you health, peace and freedom; for the last of 
which America is contending and will contend at every 
hazard." 

After Stokes' return to England he wrote 

A 
NARRATIVE 

OF THE 

OFFICIAL CONDUCT 

OF 

ANTHONY STOKES 

OF THE 

Inner Temple, London 

Barrister at Law; 

His Majesty's Chief Justice, and one of his 

COUNCIL OF GEORGIA: 

and of the 

DANGERS AND DISTRESSES 

He underwent in the Cause of the Government 

Some Copies of which are printed for the Information 

of his Friends. 

London, 1784. 

It gives the British view of the situation in Georgia, and 

also many side lights on legal affairs during the exciting 

years between the Stamp Act and the Revolution. 

In that intermediate period between the repudiation of 

53 



British authority and the organization of the new Govern- 
ment, the exact legal status of Georgia was a matter of dis- 
pute. It was sometimes referred to as a Province and some- 
times as a State, and there was a doubt as to whether Indict- 
ments should still run in the name of the King, as under the 
Trustees the question had been whether Bail Bonds should 
be to them or to the King. (4 C. R. 88.) 

William Stephens had been elected as Attorney General, 
May I, 1776, with a salary of 25 pounds (Rev. Rec. 119, 
227), and Gov. Bulloch referred this question to him. As 
it is the first legal opinion of a Georgia lawyer, it may be 
stated that he gave it as his opinion that the following 
would be proper: 

"The grand jurors of the body of the Province of 
Georgia, upon their oaths, present," etc., and concluding 
"against the peace of the Province and the welfare of the 
inhabitants thereof." ( Charlton's Life of James Jackson 8. ) •^ 

THE CONSTITUTION OF 1 777 

Because even the boldest hesitated to cut the bonds, 
and set up a new government, the colonies, prior to the 
Declaration of Independence, were governed by temporary 
Assemblies, and Committees of Safety, born of the neces- 
sity of those troublesome times. 

Indeed, in Georgia, the President and Council of Safety 
remained in power until the State organized under the Con- 
stitution of 1777.^*' 

The first constitutional convention of Georgia met in 
Savannah on the first Tuesday in October, 1776. The 
constitution known as the Constitution of 1777, was finally 
adopted and promulgated on February 5, 1777.^' 

This convention of the people of Georgia was composed 
of delegates from thirteen parishes and the towns of Savan- 
nah and Sunbury. This was the first regular Constitution 
for the State of Georgia, for the form of government 
adopted by the Provincial Congress in the year preceding 
could not properly be called a Constitution — it was merely 

54 



a military government, improvised to meet the emergency 
of the times. ^^ 

This Constitution began with certain whereases which 
were followed with this statement: "We, therefore, the 
representatives of the people, from whom all power origi- 
nates, and for whose benefit all government is intended, by 
virtue of the power delegated to us, do ordain and declare, 
and It is hereby ordained and declared, that the following 
rules and regulations be adopted for the future government 
of this State. "i'' 

There was no separate article embracing an enumera- 
tion of principles, called In modern Constitutions "the bill 
of rights." Four brief sections In It constitute the declara- 
tion of "fundamental principles." They are as follows: 

"Excessive bail shall not be demanded, nor excessive 
fines imposed. The principles of the Habeas Corpus Act 
shall be a part of this Constitution. Freedom of the press 
and trial by jury shall forever remain Inviolate. No clergy- 
man of any denomination shall be allowed a scat In the 
legislature."^* 

The Constitution followed that of Virginia in adopting 
the new maxim of free government: 

"The legislative, executive and judiciary departments 
shall be separate and distinct, so that neither shall exercise 
the power properly belonging to the other." 

This great maxim of free government, a bulwark of 
human liberty, although clearly stated, was not closely fol- 
lowed In the Constitution Itself.^" 

The General Assembly, called the "House of Assembly," 
was a single body, composed of members elected yearly from 
each county. From this single body was elected an Executive 
Council to aid the House of Assembly In reviewing legisla- 
tion before its final passage, and proposing amendments to 
the same. While the Executive Council had no right to vote 
in the House of Assembly, It had the right, by a Committee 
from Its body, to be present covered, (the members of the 
House, except the Speaker being uncoverd) and to discuss 

55 



in the House amendments to legislation proposed by the 
executive council.^® 

Article 7 provides that "The House of Assembly shall 
have power to make such laws and regulations as may be con- 
ducive to the good order and well-being of the State; pro- 
vided such laws and regulations be not repugnant to the true 
intent and meaning of any rule or regulation contained in the 
Constitution." Thus in the beginning of constitutioal gov- 
ernment, as now, the power of the legislature to enact laws 
was limited by the terms of the Constitution, and the power 
to make them was also limited to those specifically chosen for 
that purpose.^^ 

The electors were restricted to "all male white inhabi- 
tants, of the age of 21 years, and possessed in his own right 
of property of ten pounds value, and liable to tax in the 
State or being of any mechanical trade." 

Those eligibld( as representatives should "be of the 
Protestant religion, and of the age of 21 years, and shall 
be possessed in their own right of two hundred and fifty 
acres of land, or some property of the amount of two 
hundred and fifty pounds-" 

The restriction as to the Protestant faith was unworthy 
of the men who framed the Constitution, and is inexplicable 
in the light of Sec 41. 

"All persons Vv^hatever shall have the free exercise of 
their religion; provided it is not repugnant to the peace 
and safety of the State; and shall not, unless by consent, 
support any teacher except those of their own profession."^" 

The Executive Department consisted of a Governor and 
Council, both elected annually by the House of Assembly. 
The Council was selected from the members of the House 
of Assembly. The power of the Governor was very limited; 
he could not pardon any offence, could simply grant re- 
prieves; he could not veto any bill passed by the House. '^ 

This instrument created a judicial system composed of 
a Superior Court, a Court of Conscience, and a Court 
Merchant. 

56 



The Superior Court was held twice a year in each county, 
and had jurisdiction of all causes whatsoever, unless other- 
wise provided in the Constitution, and consisted of the 
Chief Justice, and three or more Justices residing in the 
county. It had jurisdiction not only in cases at law and in 
equity, and criminal cases, but as well in all matters usually 
within the jurisdiction of a Probate Court or Court of 
Ordinary. (Watkins' Digest, p. 13) 

The Court Merchant was brought over from the days 
of the Colony, having jurisdiction in cases between mer- 
chants, dealers, and others on the one hand, and shipmasters, 
super-cargoes, and other transients on the other, the juris- 
diction being unlimited as to the amount, and the Court be- 
ing held by the Chief Justice, or in his absence, one of the 
Justices of the county. The proceedings were summary, 
cases being tried after seven days' notice.^" 

In America, general jurisdiction was conferred upon the 
Justices of the Peace first in criminal cases. In the colony 
of Georgia in 1760, an act was passed for a more speedy 
recovery of small debts, and damages, thus making Justices 
of the Peace Judges of "small debt courts," as well as con- 
servators of the peace- The rule of decision in these courts 
was according to equity and good conscience and the courts 
were called "Courts of Conscience." In 1762 the Act of 
1760 was explained and amended and the Constitution of 
1777 declared "that the Court of Conscience shall be con- 
tinued as heretofore practiced and that the jurisdiction 
thereof be extended to try cases not amounting to more 
than ten pounds."-^ 

Jurors attended the Superior Court, from whose de- 
cisions in civil cases an appeal was allowed to a special jury. 
There was no other provision for a new trial than by this 
single appeal to a special jury.^* 

Jurors in all cases, both civil and criminal, were made 
"judges of law as well as of fact," and to secure to them 
the full and free exercise of this high prerogative, no special 
verdict was allowed to be brought in; but if all or any of 

57 



them had doubt concerning points of law, they were at 
liberty to apply to the Bench, then composed of the Chief 
Justice and three or more county Justices, each of whom, 
in rotation, was required to give his opinion. This Con- 
stitution provided for both petit and special juries. The 
former were sworn "to bring in a verdict" according to law, 
and the opinion they entertained of the evidence, "provided 
it was not repugnant to the rules and regulations contained 
in the Constitution," and the latter were sworn to return a 
verdict according to law, and the opinion they entertained 
of the evidence, provided it be not repugnant to justice, 
equity and conscience and the rules and regulations of the 
Constitution, of which they were to be the judges. ^"^ 

The provisions of this Constitution as to the venue of 
civil and criminal cases have been followed in all of the 
Constitutions of the State. Defendants in civil cases were 
to be sued in the county of their residence- Contests respect- 
ing real estate were to be tried where the real estate was 
situated, and criminal offences In the county where com- 
mitted.^^ 

The Constitution of 1777 formed the twelve Parishes 
of the Province into the six oldest counties of the present 
State, the distribution being as follows : 

Christ Church and St. Phillip's South of Canouchee, 
became Chatham county; St. Matthew's and the rest of St. 
Phillip's became Effingham; St. George's Parish became 
Burke; St. Paul's became Richmond; St. John's, St. An- 
drew's and St. James' became Liberty; St. David's and St. 
Patrick's became Glynn; St- Thomas' and St. Mary's be- 
came Camden, while the ceded lands North of Ogeechee 
formed the seventh county, Wilkes.* 

The Constitution took from the courts the power of 
admitting or disbarring attorneys and provided that "no 
person shall be allowed to plead in the courts of law in this 
State, except those who are authorized so to do by the 
House of Assembly, and if any person so authorized shall 
be found guilty of malpractice, before the House of Assem- 

58 



bly, they shall have power to suspend them. This Is not 
intended to exclude any person from that inherent privilege 
of every Freeman — the liberty to plead his own cause." 

This w^as so strictly construed that when Gen. Mcintosh 
employed noted and distinguished non-resident counsel it 
was thought they could not represent him without authority 
of the House of Assembly, which thereupon passed a resolu- 
tion "granting leave for Charles Cottesworth Pinkney, 
Thomas Pinkney and Edward Rutledge, Esquires, to be 
admitted to plead at any Court of justice in this State, so 
far as relates to any cause General Mcintosh may be en- 
gaged in or have occasion to commence." (3 Rev. Rec. 300)" 

In this first Constitution no limitation was laid upon 
the exercise of the taxing power of the legislature, the only 
provision in the nature of a limitation being the directory 
provision that schools should be provided in each county 
and supported at the general expense of the State, ^^ 

The provision in reference to amendment in this con- 
stitution was as follows : 

"No alteration shall be made in this constitution with- 
out petitions from a majority of the counties, and the peti- 
tion from each county to be signed by a majority of the 
voters in each county within this State; at which time the 
Assembly shall order a convention to be called for that 
purpose, specifying the alterations to be made, according 
to the petitions preferred to the Assembly by the majority 
of the counties as aforesaid."^' 

This provision is the first instance of the much discussed 
modern right of the initiative by the people in the consti- 
tution of any American State. ''^^ 

No amendments were ever made to this Constitution.^' 

This first Constitution shows that it was made by a 
people recently released from the control of a strong govern- 
ment, wild with the spirit of freedom, confident in their 
capacity to make laws for themselves and determine their 
meaning and application, unrestricted by vetoes of Gover- 
nors or opinions of Judges-^* 

59 



Entails and primogeniture were abolished, yet the repub- 
licanism of these early constitutions was only skin deep. 
There was a strange medley of new democracy and respect 
for old forms. Voters were each required to be possessed 
of ten pounds in his own right, and were subject to a penalty 
not exceeding five pounds for a failure to vote. The repre- 
sentatives were to be of the Protestant religion, own 250 
acres of land, or be possessed of 250 pounds of property, 
and be able to swear that they had obtained their election 
without fraud or bribery. While titles of nobility dis- 
qualified a person from holding any office until he should 
give up such distinction, when he should be entitled to vote 
and hold office and enjoy the benefits of a free citizen, still, 
the same Constitution was very particular to provide that 
the title of Governor should be "Honourable," and to 
arrange all of the details by which communication between 
the Honourable Governor and the House should take place 
through the intervention of an intermediary council.^ 

While the Constitution of 1777 was and has remained 
the foundation of Georgia's constitutional policy, nothing 
is known of the men who made it; its journal is lost, and 
the men who made it have been forgotten. 

It was made in pursuance of the recommendation of the 
Continental Congress, as a step to throw off the oppression 
of Great Britain; and as an assertion of rights and privileges 
under the law of nature and reason. 

It had its birth in a time of great trial, in the very 
presence of Tories and Royalists, with English sailors and 
soldiers on the one hand, and Indian savages on the other. 

Georgia was the weakest of the Colonies; was largely an 
unexplored wilderness; with only seven counties, fringing 
the coast, and the bank of the Savannah River. It had not 
been half a century since Oglethorpe presided at her birth. 

The adoption of this Constitution meant conflict 
between Georgia, the weakest of the Colonies, and the most 
powerful nation of the earth. It was an inspired acclama- 
tion of freedom, and a challenge to tyranny. Its makers, 

60 



although their names have been forgotten, were brave men. 
With tyranny seeking to throttle them, and with the hang- 
man's noose ever in sight, they patiently worked out a sys- 
tem of local self-government that proclaimed a new and 
better freedom, and hastened the destruction of English 
power in the New World. 

This was no task for the faint hearted. They were 
patient, courageous, iron-willed men, to whom we owe a 
debt of gratitude yet unpaid.^* 

By the General Assembly the Governor's salary was 
fixed at 500 pounds, and that of the Chief Justice at 300 
pounds. In the distracted and impoverished condition of 
the feeble Commonwealth, then in the throes of a mighty 
revolution, it was contemplated that the salaries of these 
officers should be paid in sterling money or its equivalent. 
The purchasing power of good money, as contrasted with 
that of the paper currency issued upon the faith of the 
State, became, during the progress of the struggle, so great 
that one dollar of the former was reckoned as the equiva- 
lent of fifteen hundred of the latter. The Courts too were 
soon practically closed. Silent leges inter anna. Spasmodic 
and partial was the effort to collect taxes. The Government 
itself was peripatetic, and the proceedings of the Executive 
Council, charged with the administration of State affairs, 
consisted of little more than insignificant orders, brief com- 
munications, meager journals of convocations, deliberations, 
adjournments and removals, and scanty memoranda of ef- 
forts to promote the public safety." So desperate was the 
situation at the close of the war, that Governor John Martin 
had to appeal to the Legislature to make special provision 
for his family to keep them from starving-* 

THE REVOLUTION 

The Bar Association historians have not attempted to 
write for us a connected history of the Revolution. This 
could not have been expected, but from the "thumb-nail" 
sketches of the lawyer-soldiers of the period we may get a 

(51 



tolerable picture of the time, and some familiarity with the 
dominant figures of Eighteenth Century Georgia. 

Mr. Justice Miller, in Garland's case, (4 Wall. 333) 
said that lawyers "are by the nature of their duties the 
moulders of public sentiment on questions of government." 
So it undoubtedly was in the days of the Revolution. To 
write the lives of Otis and Adams of Massachusetts, of 
Henry and Jefferson of Virginia, is to write the history of 
the period. And our own State's history, from the time 
when she made common cause with her sister colonies in 
resisting oppression till she took her place in the Union 
under the Constitution, may be best studied in the lives of 
Archibald Bulloch, George Walton and James Jackson, all 
members of the Georgia Bar. 

It was Bulloch who planted the Liberty Pole, organized 
the Council of Safety, and headed the Liberty Boys; who 
was President of the first Provincial Congress which assem- 
bled at Tondee's Tavern; who led the party that burned 
every house on Tybee Island to prevent its use by the 
British seamen from the men-of-war anchored in the roads; 
who first read the Declaration of Independence to the 
assembled townspeople in Savannah; who became the first 
Provisional President of Georgia and commander-in-chief 
of the military forces; but who was cut off ere the conflict 
of arms had fairly begun. White in his "Statistics of Geor- 
gia" concludes his biography of Bulloch thus: "Georgians! 
Let the memory of Archibald Bulloch live in your breasts! 
Tell your children of him, and let their children tell another 
generation!" Right worthily have the descendants of the 
old patriot borne themselves. His son. Major Wm B. 
Bulloch, U. S. Senator, is mentioned in connection with the 
War of 1 8 12. Two grandsons were officers in the Confed- 
erate Navy, one of them fitted out the "Alabama." His 
great-grandson, ex-President Roosevelt, was Lieutenant 
Colonel of the Rough Riders in the war with Spain, and 
Colonel Roosevelt's four sons were all ofllicers engaged in 
active service in France. Lieutenant Quentin Roosevelt, of 

62 



the Aviation Corps, met death gloriously near the old 
French city of the same name. One of the first officers of 
the American Expeditionary Force, engaged in service over- 
seas, wounded in defense of liberty, was Captain Archie 
Roosevelt, the namesake and lineal descendant of this ster- 
ling old patriot. 

Walton, the Secretary of the Provincial Congress and 
one of the three immortals who signed the Declaration of 
Independence on behalf of Georgia, was a Lieutenant 
Colonel of the Continental Line. He was wounded and 
captured in the fighting around Savannah, where he served 
with conspicuous gallantry. After the war he filled with 
ability and most acceptably the high offices of Governor for 
two terms, United States Senator and Representative in six 
Congresses, was twice Chief Justice, and after that office 
was abolished by the new Constitution, was for fifteen years 
Judge of the Superior Court. 

Georgia should have had four signers of the Declara- 
tion instead of three. But John Houston, son of Sir Patrick, 
who was a member of the Continental Congress was com- 
pelled to return to Georgia to combat the intrigue of the 
Rev. Dr. Zubly, who had turned royalist, and so was absent 
when the great charter of liberty was signed. He had been 
a conspicuous member of the first Provincial Congress. As 
Governor and commander-in-chief of the militia, Houston 
headed an expedition for the invasion of Florida, then 
owned by England and from which Georgia was constantly 
menaced. But disagreement arising among the officers, the 
enterprise was abandoned. He, too, became Chief Justice 
of Georgia, and afterward Judge of the Superior Court. 

Two other lawyers were members of the first Provincial 
Congress, John Glen and William Ewen. Both were mem- 
bers of the Council of Safety, Ewen for some time its Presi- 
dent, and active participants in the stirring events of the 
times. Glen was elected the first Chief Justice of the State 
and later became Judge of the Superior Court. 

63 



White, in his "Historical Collections," says of Ewen: 
"He was among the first of that immortal band who took 
up arms in defense of American liberty." But no record 
of active military service of either Ewen or Glen has been 
preserved. 

One of the early escapades of the war was the break- 
ing open of His Majesty's magazine and the seizure of the 
powder stored therein and so much needed by the patriots. 
Some of this powder was sent to the army, then encamped 
in the vicinity of Boston, and was used in the Battle of 
Bunker Hill. Two of the leading spirits in this adventure 
were young limbs of the law, William Gibbons and John 
Milledge. Gibbons, after the war, was rated by General 
Jackson as the foremost lawyer in the State, enjoying an 
income of three thousand pounds per annum. 

John Milledge fought in defense of Savannah; when the 
city fell, fled with James Jackson into South Carolina, where 
they barely escaped being shot as Tory spies; returned to 
Georgia, and participated in the siege and assault upon 
Savannah, and in other campaigns. He became Governor 
of Georgia and presented to the State the campus upon 
which was erected the buildings of Franklin College, now 
the University. 

Another of the powder magazine party was that 
staunch Scotch patriot, Edward Telfair, one of the Assis- 
tant Justices for the County of Burke. He was a Son of 
Liberty, a member of the Council of Safety, of the Continen- 
tal Congress and of the Congress of the United States, and 
succeeded George Walton as Governor. 

John Adam Treutlen, the first Governor of the State, 
and one of the most active of the early patriots, was also 
an Assistant Justice. 

Captain Benjamin Taliaferro, of the Continental Line, 
who was engaged in the New Jersey campaign and after- 
ward saw service under Morgan in the South, and was 
captured at Charleston, was elected to an oflice for which 
legal training is usually considered requisite. Though not 

64 



a lawyer, the Legislature, after the war, honored him with 
the commission of Judge of the Superior Courts of the 
Western Circuit, which position he seems to have filled with 
entire satisfaction. He was also a member of Congress. 

Both of Georgia's delegates to the Constitutional Con- 
vention of 1787, whose names are appended to the Federal 
Constitution, were lawyers and both were soldiers. William 
Few, Jr., was a Lieutenant Colonel of Richmond County 
Militia, and participated in the almost daily skirmishes 
and forays about Augusta. His father, William Few, was 
a Colonel, and his brother, Ignatius, a Captain of the Conti- 
nental Line. He was one of our first Senators, a member of 
Congress, and, like so many other of Georgia's great men, 
a Judge of the Superior Court. 

Connecticut gave to Georgia two of the most illustrious 
citizens of this early time — Dr. Lyman Hall, a signer of 
the Declaration of Independence, and Abraham Baldwin, 
who, with Colonel Few, signed the Constitution of the 
United States on behalf of Georgia. Educated for the 
ministry, Baldwin was a Chaplain in the Continental Army. 
Moving to Georgia at the close of the war, he represented 
the State in the first four Congresses and afterwards as 
Senator. As the father of the University of Georgia, he is 
gratefully remembered by all Georgians. 

From first to last, Georgia was represented in the Conti- 
nental Congress by twenty-five delegates, of whom ten were 
lawyers and three Associate or Assistant Justices of the 
Superior Courts. When Governor Wright's Royalist Assem- 
bly met in Savannah in July, 1780, seventeen of these dele- 
gates were attainted for high treason and their estates for- 
feited. The number included six of the lawyers and all three 
of the Associate Justices. Of these lawyer delegates, men- 
tion has already been made of Baldwin, Bulloch, Few, Gib- 
bons, John Houston and George Walton, and of Justice 
Telfair. The other two Justices were Benjamin Andrew, 
President of the Council of Safety, and grandfather of 
Bishop James O. Andrew, of the Methodist Church; and 

65 



Edward Longworthy, who wrote the first history of Georgia, 
the manuscript of which unfortunately was lost before it 
was printed. 

The other lawyers were: James Gunn, a Captain of 
Dragoons during the war, and afterwards Brigadier Gen- 
eral of Militia, He was one of Georgia's first Congress- 
men, and then United States Senator, but his name will 
ever be associated with the notorious "Yazoo Fraud:" 

Lieutenant Colonel Samuel Stirk, who accompanied 
President Button Gwinnett on his ill-starred Florida expe- 
dition, was Clerk of the Executive Council under John Adam 
Treutlen, the first governor, and later served as Attorney 
General: 

Richard Howley, who had the unique distinction of 
holding the two high offices of Governor and Congressman 
at the same time. As a side light on the times, it is inter- 
est to know that Georgia currency had depreciated to such 
an extent that the Governor's expenses to Philadelphia, 
where he went to take his seat in Congress, cost the State 
half a million dollars. Howley also served a term as Attor- 
ney General: 

William Houston, a brother of John, who was twice 
elected to the Continental Congress, was also a delegate to 
the Constitutional Convention of 1787, but declined to sign 
the Constitution. Of only one military event in his life do 
we have an account. While a member of Congress, a dele- 
gate from Rhode Island made some remarks reflecting on 
the South. The next morning Houston appeared in Con- 
gress armed with a sword. Friends intervened, however, 
and a promising military career was cut short. 

One of the greatest names in Georgia history was the 
soldier-lawyer, James Jackson. But nineteen when the war 
broke out, he was a volunteer for the very first military 
enterprise, the capture of the rice-laden ships in Tybee roads. 
As Lieutenant, Major, and Lieutenant Colonel, he was en- 
gaged in practically every battle fought on Georgia soil. 
He was wounded at Midway, where General Screven was 

66 



slain. He assisted in the defense of Savannah. He dis- 
played the utmost gallantry at Kettle Creek. By General 
Greene's authority he raised a mixed legion of infantry and 
cavalry, which joined the French and American forces at 
the siege of Savannah, where his name will ever be linked 
with those of Pulaski, Jasper, Habersham, Mcintosh and 
D'Estaing. When Georgia was completely overrun by the 
British and Tories, he crossed over into South Carolina, and 
at the Battle of Cowpens again distinguished himself for 
bravery and skill. He performed valiant service at the 
siege and capture of Augusta. He was with "Mad Anthony" 
Wayne operating before Savannah when the British at last 
evacuated the place, and in token of his distinguished ser- 
vices he was appointed to receive the keys of the city. After 
the war he became a Brigadier, then Major General of 
Militia. His military record, conspicuous and brilliant as 
it was, is lost sight of in the great service rendered his 
State in times of peace. As he fought in every battle, so 
he held every office in the gift of the people. Congressman, 
Governor,* Member of the Constitutional Convention of 
1798, United States Senator, which last office he resigned 
to attack in the Georgia Legislature the iniquitous "Yazoo 
Fraud." 

This record would not be complete without mention of 
the redoubtable Colonel John Dooly. His activities in 
upper Georgia at the time when the State was in complete 
control of the British did much to keep alive the fires of 
liberty and woni for him the title of "The Terror of the 
Tories." While he did much to check the atrocities of the 
Tories, he at last fell a victim of their hatred, being foully 
murdered in his own home. Whether Colonel Dooly ever 
read law, the record does not disclose, but he was appoint- 
ed Attorney General to represent the State at the first 
Court of "General Sessions or Oier and Terminer and Gen- 
eral Goal Delivery," holden in and for the County of 

*Shortly after the war General Jackson was elected Governor but 
declined to serve on account of his youth and inexperience. In later 
life he was again elected and this time accepted. 

67 



Wilkes, at the house of Jacob McLendon, August, 1779, 
and he made a record of which the most bloodthirsty solic- 
itor might be proud, securing the conviction of nine pris- 
oners for capital offenses. They were all duly and regularly 
hanged by the neck until their bodies were dead, dead, 
dead.i" 

Born amid the shock of arms, John McPherson Berrien 
first saw the light on the 23rd of August, 1781, at the 
residence of his paternal grandfather, near Princeton, New 
Jersey. That grandparent was one of the Justices of the 
Supreme Court of that infant Commonwealth, and a friend 
of Washington. 

Major John Berrien, the father, was an officer in the 
Continental Army, and his mother, Margaret McPherson, 
was the sister of John McPherson, who as an aide-de-camp 
to General Montgomery, shared with him a soldier's death 
before the walls of Quebec. 

Shortly after the evacuation of Savannah by General 
Alured Clarke and the King's forces in June, 1782, Major 
Berrien, who during the war of the Revolution had seen 
service in this State on the staff of Brigadier General Lach- 
lan Mcintosh, removed with his family from New Jersey 
and fixed his home in the commercial metropolis of Georgia. 
In the impoverished condition of the Commonwealth, and 
in the absence of suitable educational advantages at the 
South, anxious that his son should obtain the best instruc- 
tion the country then afforded. Major Berrien sent him to 
school both in New York and in New Jersey. His collegi- 
ate studies were pursued at Nassau Hall, and from this in- 
stitution he received his degree of Bachelor of Arts at the 
early age of fifteen. 

Returning to Georgia, he entered the law office of Hon. 
Joseph Clay, son of a member of the Continental Congress 
and Deputy Paymaster-General in the Southern Depart- 
ment; himself an eloquent advocate, afterwards advanced 
to the bench of the United States Court for the District of 

68 



Georgia- At a later period, laying aside his judicial robes, 
Judge Clay entered the sacred ministry and became a 
famous American pulpit orator. 

His eighteenth year was not completed when Mr. Ber- 
rien was called to the bar.^^ In Georgia history few names 
hold higher place than that of Judge Berrien, a most accom- 
plished lawyer and Judge, Senator and Attorney-General 
of the United States.^" By the country at large, he was 
saluted as the American Cicero, and of him, when respond- 
ing in behalf of the Supreme Court of Georgia to the memo- 
rial submitted by the Savannah Bar, Chief Justice Lumpkin 
exclaimed, "As a lawyer and a citizen who will dispute 
with him the premiership?"^^ While his conspicuous public 
career belongs to a later period, he was a product of 
Eighteenth Century Georgia. 

THE JUDICIARY I777-180O. 

Upon the recapture of Savannah by the British, Chief 
Justice Stokes returned with Governor Wright and again 
opened court, and there are numerous entries in the Narra- 
tive relating to legal matters during that period. James 
Robertson was the Attorney-General under the British. In 
the siege of Savannah, in 1779, by the French under Count 
D'Estaing, a shell destroyed Stokes' house, killed three and 
seriously wounded three others of his slaves. When the 
city was captured he escaped and returned to England (see 
letter to him from Joseph Clay, 8 Ga., Hist. Sec. 254), 
where his salary of 500 pounds was paid for a year or two 
and then he wrote his most cellebrated book, "Constitution 
of the British Colonies in America." 

Stokes's Work contains a valuable chapter on the organi- 
zation and practice of the courts of Georgia, both before 
and after the Revolution, and with that curious mixture of 
the unimportant with the important he gives (p. 190) the 
"Rules of Precedency for the Settlement of the Precedency 
of Men and Women in America." 

69 



When Stokes left Georgia, John Glen was elected first 
Chief Justice of the State, with a salary of 300 pounds. But 
as all of the Court records have been lost there is nothing 
in Georgia relating to his administration of the office. How- 
ever, a copy of the record in John White vs. Peter Knight, 
tried by "The Honorable John Glen, Esquire, Judge of the 
Court of Admiralty of the State of Georgia." has been pre- 
served, which is probably the oldest complete record of a 
judicial proceeding in the State. The case grew out of the 
capture and seizure of the sloop Polly, and involved the 
title to the boat and cargo. The finding was in favor of the 
libellant. The case was appealed to the Continental Con- 
gress and w^as referred to a Committee consisting of James 
Wilson, John Adams, Thomas Burke. They affirmed the 
judgment. Few of us realize that at one time the Superior 
Court of this State exercised Admiralty jurisdiction and that 
appeals were allowed to the Continental Congress. But 
that case is mentioned in books discussing the facts leading 
up to the organization of the Supreme Court of the United 
States. 

Glen was succeeded by Stephens, and he by Wereat.*' 

Upon the recapture of Savannah, in 1782, although des- 
olation brooded everywhere and poverty lay down at every 
door, the General Assembly, in again putting in motion the 
wheels of Government and providing for the reopening of 
the temples of justice, — the doors of which had been sealed 
for several years, — provided a salary of 500 pounds for the 
Chief Justice. It will be remembered that while there were 
then Associate Justices in each county, they were not salaried 
officers. Their positions were entirely honorary. The 
Chief Justice rode the circuit of the State, and, unless pre- 
vented by Providential cause, presided at all sessions of the 
Superior Court in each county. As early as 1804 the salary 
of the Judges of the Superior Courts was fixed at fourteen 
hundred dollars." 

When Wereat's term expired the Legislature not only 
elected a man who was not a candidate, but one who was 

70 



not a citizen. In August, 1782 (3 Rev. Rec. 187) it was 
"Resolved that the Governor be requested to write to the 
Hon. Aedanus Burke, Esq., of South Carolina, informing 
him that this House had elected him to the office of Chief 
Justice of this State with a salary of 500 pounds sterling." 
(3 Rev. Rec. 187, 188.) 

He did not accept the Georgia appointment and Richard 
Howley was elected in his stead. (3 Rev. Rec. 380.) 

All Court Records of the Revolutionary period appear 
to have been lost, except those in Wilkes, prior to 1779. 
The consequence is that we know nothing of the legal his- 
tory of that tim.e, except that we can gather from the inci- 
dental allusions in the Minutes of the Governor and Coun- 
cil. These give us the names of the Chief Justices (John 
Glen, 1776-1780; Williams Stephens, 1780; John Wereat, 
178 1 ; Aedanus Burke, 1782; Richard Howley, 1782; 
George Walton, 1783-1786; John Houstoun, 1786; 
WiUiam Stith, 1786-1787; Nathaniel Pendleton, 1787-1788; 
Henry Osborn, 1788-1789; Nathaniel Pendleton, 1789) — 
and the judges of the Superior Court of the State — George 
Walton, Henry Osborn, William Stith and John Houstoun 
— whose commission (2 Miller's Bench and Bar) is inter- 
esting in itself and by comparison with the brevity of those 
now used, when the State has two hundred times as many 
inhabitants. 

When the State was divided into Circuits, the Eastern 
(Home) was in the southern part of the State; the Middle 
in the central part, and the Western in the northern part, 
from which it has been suggested they were named after the 
English circuits, and not with reference to their geographi- 
cal position. (Watkins' Digest, 480, 620.) The judges, 
up to 1799, of the Eastern Circuit were William Stephens, 
John Glen, David Mitchell; Western, Thomas Carnes; 
Middle, George Walton and William Few, the latter of 
whom, while in the Legislature, introduced, but without 
securing its adoption, the first local option law ever offered 

71 



in Georgia, proposing that it should be left to the voters to 
determine whether the court house of Richmond County 
should be located at Klokee, Brownsville, or Augusta. 
(3 Rev. Rec. 565. )« 

The Circuit Judge In Georgia was a splendid figure In the 
epic era of our commonwealth, when unfettered by a code, 
unenlightened and befogged by a maze of decisions through 
which to search for the last one on the point at issue, he drew 
for judgment on the rich treasury of the common law, and 
listened to the rare eloquence of a royal race of advocates 
who came to the forum fresh from communion with nature 
in her wild, uncultured beauty. But of their labors little is 
left of record.'** 

To complete the list of the Eighteenth Century Bench, 
it is proper to call attention to the fact that for a time, as 
in some of the States prior to i860, laymen presided in the 
Superior Court, as Assistants to the Chief Justice, when he 
was present, and by themselves when he was absent. This 
was an outgrowth of the English custom, followed during 
the Colonial time, of putting the Governor, Chief Justice, 
Assistant Justices, Attorney General, and leading men of 
each Parish in the Commission of the Peace. After the 
Revolution, these men were authorized to sit with the Chief 
Justice and In his absence to hold the Superior Court.® 

These Assistant Judges were laymen, and nominated 
for their high standing and influence In the community, they 
claimed and received neither salaries nor emoluments. ^^ 

SOME EIGHTEENTH CENTURY JUDICIAL PROCEEDINGS 

The very oldest judicial record In Georgia contains the 
minutes of a court held by three Assistant Judges in 1779. 
The record shov/s that : 

"agreeable To an Order of his Honor The Presi- 
dent, and the Honorable The supreme Executive Council 
for the State aforesaid past the Council Chamber at Augusta 
the day of August 1799 — 

72 



A COURT OF GENERAL SESSIONS OR OIER AND TERMINER 
AND GENERAL GAOL DELIVERY, 

"Begun and held at the house of Jacob McLendons on 
the twenty-sixth day of August 1779, Before the Honora- 
ble William Downs, Benjamin Catchings & Absalom Bedell, 
Esqrs., Assistant Judges for the county aforesaid." 

Among other things the Grand Jury, Stephen Heard 
being Foreman, and Colonel Jno. Dooly acting as Attorney- 
General, returned an Indictment for High Treason, which 
is celebrated because it was only "as long as your finger." 
It charged Rials with "High Treason against this State in 
that he did act in conjunction with the Creek Indians when 
they were doing Murder on the Frontier of this County 
last March, it being contrary to all laws and good Govern- 
ment of the said State and to the bad example of others." 
Rials plead the General Issue not guilty and put himself 
"on God and his country for Tryall." He was found 
Guilty. 

But the most remarkable proceeding at that term of 
the Court is the case of James Mobley, indicted for "High 
Treason against the State, in that he did steal and carry 
away a black horse of John Garnett some time last June, 
and that he did also steal, take and carry away 57 head of 
hoggs, the property of Robert Morgan some time in the 
month of December last." He too plead the general 
Issue, Not Guilty, and demanded Tryall by God and his 
country. The jury brought in their verdict, "Not Guilty, 
and so say they all." There was no Bill of Rights and no 
provisions against double jeopardy, and so "The State's 
Attorney moved to the Honorable Court that James Mobley 
should be ordered to be sent to Augusta for further tryall. 
Not Granted." The Solicitor was persistent, however, and 
the minutes show that the next day "The Honorable Attor- 
ney in Behalf of the State Motioned to the Court that the 
tryall of James Mobley should be reheard, as he could pro- 
duce More evidence in behalf of the State to support the 
charge brought against him. The Court granted the Request 



— and "ordered That he should be brought to the Barr im- 
mediately." There was a new trial and conviction of the 
acquitted man. And here we have everything that the most 
exacting could require. An indictment one day. A trial 
the next day, and then Mobley and Rials and five others in 
one sweeping order were sentenced "to be taken to the 
guard and there kept until September 6, when they are to 
be hanged by the neck until their bodies are dead." (See also 
Gilmer's "Georgians," pp. 183-188)* 

But notwithstanding this want of what many would 
regard as substance, they could not altogther get away from 
their regard for form, and the clerk having selected a silver 
quarter and scratched thereon the words, "Superior Court, 
Wilkes County," an order was passed by the court that the 
"device be authenticated as the seal of the court." 
July 17, 1790. 

On the civil side of this court there are many interest- 
ing entries, showing the persistence of common law methods 
and forms. For example, in a case (Wilkes, 1791) of what 
we would call Trover for the recovery of slaves, the counsel 
were probably doubtful as to whether such an action would 
lie, and adopted the ancient common law procedure known 
as "Ravishment of Ward," a form resorted to by Guardi- 
ans who sought to regain possession of kidnaped wards. 

The Richmond County records go back to 1782 and 
contain many entries that are of interest, because of the old 
forms and customs they record. For example, a warrant of 
Hue and Cry, issued in Edgefield, S. C, backed in Georgia, 
and executed by a Georgia officer, is found on the Richmond 
County Minutes (Vol. IV, p. 238). The Warrant was 
issued to arrest the captor and to regain possession of a 
number of slaves that had been carried away. There is a 
swing about it not often found in a legal instrument. It is 
addressed to the Sheriff and all officers and "in the name 

*A complete transcript of the minutes of this the first session of 
a Superior Court in Georgia which has b«en preserved is pubHshed 
as an appendix to "The Military Record of the Georgia Bar." (35 Ga. 
Bar Assn. Rep. 53.) 

74 



of the State command you and every one of you forthwith 
to raise the power of your precincts, and to make diligent 
search therein for the persons above mentioned, and also 
the property, and to make Fresh pursuit and Hugh and Cry 
after them, from town to town and from country to country, 
as well by horsemen as by footmen, and to give due notice 
hereof in writing describing in such notice the person and 
the offense aforesaid unto every next constable on every side 
until they shall come to the Sea Shore, or until the said 
malefactors and felons are apprehended and * * * that 
you do carfy them forthwith before some of the Justices of 
the Peace in and for the County where he or they shall be 
apprehended, to be by such Justice examined and further 
dealt withal according to law. Hereof fail not Respectively 
upon the peril that shall insure thereon." 

The records in the Ordinary's Office in Richmond County 
show that several old English customs had been transferred 
to that remote outpost. A'n A'dministrator credited himself 
with "Cash paid for reading funeral service: i pound 8." 
Another paid the expense of an oldfashioned Irish wake 
(1783, p. i) and credited himself with "2 kegs of butter 
biscuit: i pound," and "For liquor supplied the Arbitrators: 
I pound 1 8s. 9d." And another credited himself with "Price 
paid for rum, at the day of sale." That as you know, being 
for the purpose of stimulating the bidding! 

The Chatham records also contain interesting entries. 
Blackstone taught that where a foreigner was indicted for 
anything except treason, he was entitled to a trial by a jury 
de mediatate linguae. It has been held that this law was 
never in force in America, and yet (Chatham Min. 1792, 
p. 237, 239) when a Frenchman was indicted for a felony, 
he was tried by a jury of six Americans and six Frenchmen, 
the record reciting: "Defendant being a foreigner and not 
understanding the English language the Court ordered 6 
persons of the same nation to be summoned to attend and 
a venire de novo." 

75 



In one case, the verdict reads: "We find the prisoner not 
Guilty, and that his character has been greatly injured" 
(251). In another a sentence of Banishment was pro- 
nounced, it being ordered that the defendant should: "be 
remanded to jail there to be confined until an opportunity 
shall be had to transport him to some foreign and other 
territories than those belonging to the United States, and 
he is forbid to return to this state during the term of seven 
years on pain of suffering as the law directs." (60) In Bry- 
ant's case (404) for Horse ( ?) stealing there was a recur- 
rence of the Pious Fraud resorted to to save the prisoner 
from being hung. The verdict being "Guilty on the third 
and last count at common law only to the value of two 
pence, half penny." 

There is reference (1782, p. 3) to an Indictment for 
"Uttering seditious words," and several instances in which 
the Superior Court of Chatham exercised the power of a 
Court of Admiralty and passed on the question Vv'hether cap- 
tured ships carried the proper flag or v/ere prizes of war. 
In one case the verdict was "Ship was a flag and the Belinda 
a prize." 

It was not until 18 17 that the benefit of clergy was 
abolished in Georgia. Prior to that time the English rule 
had prevailed, under which all who could read were treated 
as clericals and entitled to the Benefit of Clergy; and on 
being found guilty were generally branded with the letter 
M (Manslaughter), F (Forgery) or T (Theft), and were 
then supposed to be turned over to the ecclesiastical power 
for proper punishment. The ability to read stood a man 
in good stead; and so the record in Richmond Superior 
Court (1807, p. 220) recites "We of the jury, find the 
prisoner guilty of manslaughter. It is therefore demanded 
of the said Edwards, if he hath or knoweth anything to say 
wherefore this Court ought not upon the premises and ver- 
dict aforesaid to proceed to judgment and execution against 
him, who saith that he is Clerk, and prayeth the Benefit of 
Clergy to be allowed him in this behalf. Whereupon, all 

76 



and singular, the premises being seen, and by the Court here 
fully understood, it is considered by the Court that the 
said Edwards be branded on his left hand, and immediately 
he is branded in his left hand and is delivered according to 
the form of the Statute." 

The entry in Chatham County is in a little different 
language. 

It appears (Chatham Minutes, 1793, p. 171) that on 
the trial of Huxford he was found guilty of manslaughter, 
and "the prisoner being brought to the bar to receive sen- 
tence upon his conviction, Mr. Woodruff in his behalf, 
prayed the benefit of clergy." Thereupon the court proceed- 
ed to pronounce sentence as follows: "That you, Ephriam 
Huxford, be impressed, burned and scorched with the 
letter M in the brawn of the left thumb now presently in 
open court, pay the fees of your prosecution and be dis- 
charged. "•* 

Even a slave could not be murdered with impunity. For 
we find from the records of Liberty county that in August, 
1792, Henry Johnson was convicted of the murder of a 
negro. The prisoner, being brought before the court, 
prayed the benefit of the clergy, which was allowed him, and 
he was directed to be burned in the hand according to law. 
This being done, the sentence of the court was that he pay to 
the owner of the slave the appraised value of the negro (the 
assessment of the fine payable to the owners, rather than to 
the State, being a relic of ancient law), and in the event of 
the failure to pay such amount in ten days, it was provided 
that he be sent to a frontier garrison for the space of seven 
years to serve in the militia. ^^ 

And the law was well administered in those early days. 
If you go to the records of Camden County, you will find 
two penal sentences there recorded and rendered by Judge 
George Jones, the one dated 1804 and reading as follows: 
"The State v. John Jones. Indictment for Cattle Stealing. 
Verdict of Guilty. Ordered that the prisoner be taken from 
the bar to the Common Gaol, there to remain and to be taken 
from thence tomorrow to the Pillory at the hour of Ten 

77 



O'clock and there stand in the pillory for the space of tvvo 
hours, and immediately thereafter publickly to receive thirty- 
nine lashes on his bare back, and be branded with a hot iron 
on the right shoulder with the letter "R," and to receive 
thirty-nine lashes on the bare back at the same place on Satur- 
day the 27th instant, between the hours of ten and twelve 
o'clock; and also to receive thirty-nine lashes on his bare back 
on Monday the 29th instant, between the same hours and at 
the same place, and to be imprisoned for ten days thereafter, 
and then discharged upon payment of fees;" and the other 
reading as follows: "The State vs. Samuel King. Indict- 
ment for Perjury, and Conviction thereon. The Prisoner 
being on motion of the Atty. General brought up to the bar 
to receive sentence, was asked by the Court if he had ought 
to say why sentence should not now be pronounced, and 
answering that he had nothing to say, the following sentence 
was pronounced by the Court: 'It is ordered that you, the 
said Samuel King, do pay a fine of Twenty Pounds, equal to 
Eighty-Eight Dollars and Eighty Cents, that you also be con- 
fined to the Common Prison of this County for the space of 
six months to commence from this day, to-wit, the seventh 
day of March in the year one thousand eight hundred and 
five : that you henceforth be infamous and incapable of giving 
your oath in any of the Courts of Record in this State, and if 
after the expiration of the said confinement you have not 
goods sufficient to satisfy the said fine of Twenty Pounds 
equal to Eighty-Eight dollars and Eighty Cents, it is ordered 
that you then be set in the Pillory in front of said Common 
Prison and thence to have both your ears nailed." 

Lest some present day humanitarian should conclude that 
Judge Jones was of a cruel nature, bear in mind that those 
were the customary penalties — in fact the penalties estab- 
lished by law — for such felonies at that time. Georgia had 
no penitentiary until 18 16, so that it was necessary that 
penalties be meted out quickly and gotten over with. The 
country was new, and as is always the case in new countries, 
crimes against property were punished more severely than 
any other class of crimes.^- 

78 



THE BAR 

Under the provision of the Constitution of 1777, already 
quoted, numerous special acts were passed authorizing per- 
sons to practice. (Watkins, 329, 378, 406.) But, of course, i^ 
was soon found that the Legislature had no creative power 
and could no more make a lawyer than a doctor by statute. 
The acts, therefore, generally provided that the applicant 
could be admitted when he produced to the court satisfactory 
evidence of his qualification. For example, the Minutes of 
Chatham (16) show that "on motion of Mr. Stirk the peti- 
tion of Florence Sullivan was read, including a resolution of 
the House of Assembly, and it appearing to the court that 
Mr. Sullivan has regularly served his time, he was admitted 
and sworn as an attorney." This would indicate that the 
provisions of II Geo. II, Chap. 22, was treated as of force 
in Georgia. Indeed, as late as 1783 (8 Ga. Hist. Soc. 183; 
Memoirs of Judge Rich'd H. Clark, 121), Joseph Clay, 
in writing of his son's desire to be admitted to the Bar, com- 
plains of the requirement that he should be articled as a 
clerk for five years — "the term preposterously prescribed 
by law." But that was shorter than the seven-year term 
which had long been required in England of those who were 
admitted through the Inns of Court. But it was inevitable 
that the term and course of study in Georgia should be 
shorter than in England, and this was finally settled by the 
first Rules of Court, promulgated in 1790 (3 Min. 84) by 
Judge Osborne at a session of the Superior Court of Rich- 
mond County, re-adopted in Chatham (Minutes, 1792, 364) 
and in Wilkes (1790, p. 2.) These rules provided: 

"The principle of admission of attorneys being a knowl- 
edge of the laws and the practice of the Courts, a liberal 
examination shall be had in thejse respects, but the mode 
of interrogation shall be varied, and no person shall be 
admitted until after twelve months residence." 

This was the beginning of the custom of having oral 
examination in open court, which continued for more than 
a hundred years. We do not know what were the specific 

79 



requirements for admission in Georgia, but the custom in 
the other Colonies was to pay a fee of $ioo to a member 
of the bar for the privilege of reading in his office for the 
required time. 

The standard was unusually high. Trained lawyers 
were on the bench from the very beginning of Georgia's 
history as a Royal Colony — several members of the Bar 
had been students at the Inns of Court, and while the Litch- 
field Law School under Judges Reeve and Gould was in 
existence, a greater proportion of students attended from 
Georgia than any other State, population considered. 

Judge Richard H. Clark in his Memoirs (p. 249) says 
that it was "the custom for the Judge to set aside some 
special day or days during a term for the examination of 
applicants, and to appoint the most eminent lawyers of the 
court on the Committee. No examination was had except 
what occurred in open court and that was as thorough as 
practicable." 
, Judge Andrews, in his interesting and most valuable 

^/vvA/^(XAv<l '".^^^^^^^^**^ °^ ^" ^^^ Georgia Lawyer," tells us that in 
those days of formality, the Sheriff wore a cocked hat and 
accompanied the Judge from one court to the next; and 
that the lawyers carried green bags, and were known as the 
gentlemen of the green bag. The rules promulgated by 
Judge Osborne in Augusta in 1790 republished in Chatham 
and in Wilkes, contained another instance of the formality 
of that time, in the proposal to make a distinctioin between 
attorneys and barristers, and the requirement that lawyers 
should be heard in the "Habit of a Black Robe." This 
rule provides : 

"For the sake of a decent conformity to ancient custom 
^ and of a necessary distinction in the profession, the attorneys 
shall be heard in the causes of their clients in the habit of 
a Black Robe, but this rule shall not apply to those who shall 
not have provided themselves with such Habits until the 
second term. A future rule shall provide for the recogniz- 
ing Barristers and establishing the necessary distinction." 
(Minutes Richmond, S. C. 1790, p. 54) 

80 



Mr. Dutcher, In the history of Augusta, (1890) says 
that for years after 1799 '"the Bar wore black silk robes." 

The old English custom prevailed of taxing fees of 
"Solicitors In Chancery," "Proctors," "Attorneys of the 
Common Pleas," (7 C. R. 29,) as part of the costs. ^ 

With judges and lawyers coming soon after Oglethorpe 
left. Circuit Riding along the coast began early In the history 
of the State, with Savannah furnishing the supply of Circuit 
Riders for all the coast section. Records of the counties to 
the south of Chatham all the way to Camden County teem 
with evidence of the activities of the Savannah brethren of 
those days. All the coast counties formed one circuit or dis- 
trict; the Eastern district it was called, and the judges for 
this district were without exception from Savannah. 

We may picture the judges and the members of the Savan- 
nah bar setting forth on one of their semi-annual pilgrimages 
to the South. A gallant cavalcade it must have been, clatter- 
ing along the Post-Road through Chatham to Hardwicke, 
the county seat of Bryan, thence to Walthourville in Liberty, 
then on to Darlen in Mcintosh, crossing the Altamaha to 
Brunswick In Glynn, crossing the Little Satilla River to get 
into Camden, then the Great Satilla to Jefferson, the county 
seat of Camden. 

A goodly company and joyous one It was, entertained 
along the way at the hospitable homes of the planters, with 
parties of one sort and another at every home, and with 
evenings given over to quip and jest and merry-making. 
That was indeed the Golden Age of the Circuit Rider. The 
planters along the coast, hosts to the visitng lawyers, were 
educated, cultivated men, fond of good living, knowing how 
to live, and having all the necessaries of good living near at 
hand, all sorts of fish and shellfish at their front doors, and 
all sorts of game in their fields and forests. It was such 
company and such living as this that occasioned the late 
Judge Robert Falllgant to make the declaration famous 
along the coast: "I would rather be a fiddler on the coast 
of Georgia than harpist in the Kingdom of Heaven. "^^ 

81 I 



GEORGIA UNDER THE ARTICLES OF CONFEDERATION 

At the close of the Revolutionary War, there were barely 
15,000 whites in the State. Indeed, the inhabitants were 
so few that the Constitution of 1777, in providing for the 
venue of suits, took into consideration the possibility that 
there might not be men enough in the county to form a 
jury, in which case the trial was to be in the adjoining 
county. This sparseness of population is most strikingly 
shown by the fact that there were only 551 voters in the 
District and, in the heated election for Congress between 
Gen. James Jackson and Gen. Anthony Wayne, the total 
vote was less than 500. But the State was great in poten- 
tiality, and between the Declaration of Independence and 
the ratification of the Constitution, exercised many powers, 
which now strike us as strange, because we have so long 
regarded them as National. She levied duties, made paper 
money legal tender, regulated captures on the high seas, 
prohibited the importation of slaves and laid a duty on 
those permitted to come in from other States, tried admir- 
alty cases, passed a patent law, provided for the naturaliza- 
tion of aliens, made a treaty with South Carolina and many 
with the Indians. Indeed the fact that Georgia had made 
treaties with the Indians was used as an argument in the 
Constitutional Convention of 1787 and referred to as proof 
of the weakness of the Confederation. 

Watkins (779) contains Treaties between the State and 
the Creeks and Cherokees made at Augusta in 1783 and at 
Shoulderbone in 1786 and also the Treaty with South Caro- 
lina concluded at Beaufort in 1787. As to this it may be 
said that the Committee were instructed to insist on a Boun- 
dary line "from the mouth of the River Savannah along the 
north side of it" (283), and the author of the Resolution 
either quoted it as a phrase then well known or anticipated 
the substance of what is now on the Georgia shield — the 
committee being instructed to "proceed with JUSTICE, 
MODERATION and caution" (3 Rev. Rec. 284.) 

82 



Another, and hitherto unknown chapter in the Diplo- 
matic History of Georgia has recently been found by Ed- 
mund C. Burnett, Esq., who, in an article in 25th American 
Historical Review (Oct., 1909, and Jan., 1910), publishes 
the Documents relating to Bourbon County, showing the 
appointment of twelve men as Justices of the Peace for the 
newly established County, embracing a vast extent of land 
on the Mississippi. Though they were Justices of the Peace, 
they were given instructions which were most unusual for 
judicial officers — among other things being authorized to 
accept and receive from any Spanish officers "full posses- 
sion in the name and behalf of this State of all such Forts, 
Towns and Places as may fall within the limits and descrip- 
tion of your said county." 

By Act of February i, 1788, she granted a patent on a 
steam engine to Isaac Briggs and William Longstreet, and 
it was probably with this engine that Longstreet, at Augusta, 
ran the steamboat he was building, and to which he refers 
in the letter of September 26, 1790, to Gov. Telfair, begin- 
ning "Sir: I make no doubt but you have, often heard of 
my steamboat and as often heard it laughed at." (Gould's 
History of River Navigation, 36.) 

Georgia passed her own copyright law, with the provi- 
sion, however, that the copyright should be void if the 
author did not avail! himself of it by publishing a certain 
number of his work. 

Like all the other States, she had issued paper money, 
and in such quantities that it was "not worth a Continental," 
and at one time it took $14,000 of Georgia money to buy a 
dollar in gold, and McCall (303) says "the value of paper 
money was so much reduced that the Governor dealt it out 
by the quire for a night's lodging for his party; and if the 
fare was anything extraordinary, the landlord was compen- 
sated with two quires, for which the Treas. required a draft 
made out in due form and signed by the Governor." While 
most of the salaries were fixed on sterling basis, they were 
sometimes paid in scrip which could be used in the purchase 

83 



of confiscated properties sold by the State at public outcry. 
Sometimes the debt would be paid by the grant of a particu- 
lar piece of land. Sometimes in salt, which was so valuable as 
again to illustrate how the word "Salary" came from the 
Latin "Sal,"— Salt. 

Georgia had a tariff law and collected duties on imports, 
until at the request of the Continental Congress, she waived 
the right and authorized duties to be imposed and collected 
by the Continental Congress. She had her own Naturaliza- 
tion laws and admitted non-residents to citizenship. But 
while she admitted them here, she discouraged the attend- 
ance by her sons on foreign institutions and so passed an 
act that "If any person under i6 was sent and remained in 
foreign countries three years for the purpose of receiving 
education under any foreign power he shall for three years 
after^ his return be treated as an alien in so far as to be 
ineligible to hold any office." (Watkins, 303.) 

The State also passed an act of Banishment and Con- 
fiscation against those who had taken part with the British. 
This and the other laws above mentioned, and of a kind 
which now Congress alone can pass, gave rise to litigation 
before the Georgia Courts of the Eighteenth Century. But 
the loss of original records and the absence of Reports has 
left us almost completely in the dark as to the results of the 
cases brought under these Acts. Indeed, the very existence 
of such laws has been almost completely overlooked, because 
of the fact that they are to be found only in rare volumes 
not in the practitioner's library. ** 

THE HEAD-RIGHT SYSTEM 

Desirous of filling her borders with a thrifty population, 
on 7th June, in the same year (1777), the new Legislature, 
to invite immigration, inaugurated the head-right system 
by passing "An Act for opening a land office, and for the 
better settling and strengthening this State." 

The "Head-right" system, as it is called, takes its 
name from the fact that its basis of granting lands was 

84 



founded on certain rights (per capita) given by the Acts 
establishing it. By the Act, every free white citizen or 
head of a family could locate a certain quantity of land, 
with an additional amount for every free white person or 
head in the family, and for every negro (head) owned; 
the entire grant not to exceed a certain number of acres. 
This land could be located anywhere inside of the counties 
formed, and subject to some ineffective checks, in any shape 
desired. There being no regular plan, and no comprehen- 
sive survey of the counties showing what was open and what 
taken, it can readily be seen that in a sparsely settled and 
densely wooded country, the system was well calculated to 
invite fraud, mistake and dire confusion. 

It would be useless to enter minutely into the provisions 
of this Act; it was limited as to its time of duration, and 
expired before the close of the war brought that quiet 
which was necessary to its active operation. 

Another Act, differing only in detail was passed in 1780. 
It, too, failed of its purpose. But the quiet of the State 
having become assured by the successful termination of the 
Revolutionary War, the Legislature again turned its atten- 
tion to the work of settling its uninhabited territory and in- 
creasing its population. 

The treaty of peace of 30th of November, 1782, be- 
tween Great Britain and the United States, transferred by 
formal cession to Georgia those rights of ownership and 
jurisdiction over the soil within her limits as far West as 
the Mississippi, which she had before successfully asserted 
by the strong arm. 

On 17th February, 1783, the Legislature passed "An Act 
for opening the land office, and for other purposes therein 
named." It is in it that the name "Head-right" first is 
met. It, with its amendment of ist August, 1783, became 
the fundamental law under which all titles were thereafter 
issued up to the time of the adoption of the lottery system. 
Its importance will excuse a full statement of the provisions 
of these statutes. 

85 



By the Act, each master or head of a family was allowed 
as his own "Head-right" two hundred acres; for each 
head-right, white or black, in his family, fifty acres more, 
provided that the whole amount of land did not exceed one 
thousand acres. This was the limit in all of the head-right 
statutes, so far as we can find, and is important to be 
remembered. For these lands was charged, for the first one 
hundred acres, one shilling per acre, and six pence per acre 
for the excess. 

All citizens of Georgia, or of the other States proposing 
to settle in Georgia, were allowed to take advantage of the 
Act. Persons who had received lands under former grants 
for the same head-right which they now presented, could 
not obtain lands. A twelve month's settlement and the im- 
provement of three acres out of every hundred was a condi- 
tion precedent to obtaining a grant or to the right of dispos- 
ing of the lands, except by will. During the war, Georgia 
had granted many land bounties to her soldiery. These 
could be claimed under this "Head-right" law. The manner 
of obtaining the grant was as follows: 

Every applicant for head-rights went before the Land 
Court for the county where the land lay which he desired 
to obtain. These Land Courts were curious features of this 
system — its foundation stones in fact. From them proceed- 
ed all warrants. They alone could put the machine in 
motion. They were at different times differently constituted. 
In the Act for laying out Washington and Franklin coun- 
ties, the Governor or President of the Executive Council 
(a body then existing in Georgia), with certain members of 
the Council, constituted the Court, and met at Augusta. 
This, however, was temporary, and the Land Courts of 
these counties were made the same as throughout the rest 
of the State. 

By the Act of 1783, a majority of the Justices of the 
Peace in each county were the Court, the oldest in commis- 
sion presiding. By the amendment of ist August, 1783, 
four Justices and an Associate Justice of the Superior Courts 

86 



constituted the Land Court. By an Act of 1789, three or 
more Justices of the Peace were the Court, This Court 
met at the county site at stated times to receive appHcations 
for land warrants. Before it the applicant went and took 
the oath prescribed by the Statutes, attesting his right and 
negativing the idea that he fell among the exceptions to 
those entitled. He also was required to produce a satisfac- 
tory certificate of good character. 

If his case was made out, he received his warrant, which 
he presented to some one of the authorized surveyors to sur- 
vey for him his lands. These were described as far as 
possible in the warrant. Any person having good ground 
of objection might file a caveat with the county surveyor, who 
gave thirty days' notice thereof, by advertisement, before 
its determination. It was tried by a jury of twelve free- 
holders drawn from the by-standers by the Land Court, and 
it proceeded at once to hear and determine the caveat. At 
first its verdict was final, but soon an appeal to the Governor 
and Council was allowed. If the caveat was overruled, the 
survey proceeded. 

The State had her surveyor-general, each county its 
county surveyor; the oflicers were all elected by the Legisla- 
ture. The county surveyor could appoint assistants. When 
a warrant was lodged in the hands of the county surveyor 
of the county where the land lay, or a deputy, he surveyed 
the lands and made a plat thereof. This survey and plat 
was ordered to be recorded in the county surveyor's office 
within two months from the date of the warrant. A copy 
survey and plat with the warrant was ordered sent within 
three months from the date of the warrant, to the surveyor- 
general. The applicant then paid the purchase money (if 
any) to the Treasurer, and upon production of a certificate 
of such payment from the Treasurer, the surveyor-general 
recorded the plat, and sent on the papers to the Secretary of 
State. 

Here the grant was then drawn and presented to the 
Executive for signature. When signed it was returned to 

87 



the Secretary of State, sealed with the Great Seal, and regis- 
tered. The grant was then sent to the county surveyor to be 
recorded in the county records and then deHvered to the 
grantee. 

Warrants heretofore issued under other laws passed 
since the Revolution were required to be brought in. If done 
within the time prescribed, they were protected; all bona fide 
settlers who had entered on these lands under the invitation 
of prior Acts and executive proclamations thereunder were 
likewise protected. The county surveyors were to send 
up to the surveyor-general the plats and surveys made at 
least once every two months and were also to send up 
monthly all caveats; these were to be laid before the Gover- 
nor and Council for information in issuing the grants. 

Grants, surveys, settlements or warrants on lands not 
ceded by the Indians, were, by ail the land Acts, null and 
void, and prohibited under penalties. 

The Act prescribed the form of grant to be used. By 
the Act of 1789 the Governor was authorized to alter this 
form. This he did by omitting therefrom, all mention of the 
Executive Council, which had been abolished. Except as 
then changed, the form of grant as therein provided, re- 
mained the same for head-right lands. That form recites 
the Act of 1783, as the authority for the grant; it conveys 
the land, with all of its appurtenances in fee simple, by allo- 
dial tenure, to the grantee. 

Such was the head-right system of Georgia. When we 
look at the unsettled condition of the counties where it was 
to take effect, the nature of its land courts, the unlimited 
authority of the county surveyor to appoint assistants and 
the ease with which certain by-standers could always be on 
hand to be the jury to try caveats, it is evident that such a 
system afforded a tempting field for the unscrupulous land 
speculator. 

By treaties made with the Creeks and Cherokees, in 
May and November, 1783, the Indian title was extinguished 
to that portion of the State lying within the present South- 
ern boundary of Habersham county, and a line drawn from 

88 



the Western extremity thereof to Hog Mountain, In Gwin- 
nett county, and thence down the Apalachee, Oconee and 
Altamaha Rivers to the then Hmits of the organized part 
of the State, with the organized counties, embracing every 
foot of land between these lines, the rivers named, the ocean 
and the Savannah river. This territory, by the Act of 1784, 
was organized into the counties of Washington and Franklin, 
and head-rights under the above system with but immaterial 
alterations offered. 

Lands between the Oconee and Middle Rivers were, 
for twelve month, reserved for the soldiers and sailors and 
a few other Immaterial provisions were made. 

Citizens of other States had to acquire residence within 
twelve months, in Georgia. Forty thousand acres of land, 
twenty thousand in each county was set apart for the benefit 
of the University, to be founded and marks the beginning 
of the University of Georgia. By this Act all requirements 
for cultivating lands, granted or to be granted, are abolished. 
Grants could not exceed one thousand acres, nor could they 
issue but once for the same head-right. By the Act of 1785, 
the lands in Washington and Franklin were put on like 
footing with the lands in all the other counties, and the 
vacant lands in all the counties made subject to head-rights 
alike. The Act of 1783 was afiirmed, except that for the 
lands acquired thereunder as far as the quantity of one 
thousand acres (the extreme limit) no purchase money was 
to be charged, but only office fees. A treble tax was re- 
quired unless three acres per hundred was settled on and 
cultivated within three years.* 

THE STATUS OF MARRIED WOMEN 

In 1784 the Legislature of Georgia passed a law known 
as the Adopting Act. This statute adopted the common law 
and the statutes of England of force on the 14th day of 
May, 1776, so far as they were not contrary to the Consti- 
tution and laws of Georgia and the form of government 
established in this State. 

89 



Let us consider the civil status of married women as 
it existed under this Adopting Act, and under another Act 
of the Legislature of Georgia passed 1789, in reference to 
the estates of married women. 

By the common law, the wife's chattels real and choses 
in action, on intermarriage and so soon as he reduced them 
to possession, vested absolutely in the husband. As to 
chattels personal or choses in possession which the wife had 
in her own right, such as ready money, jewels, household 
goods, and the like, the title to them on intermarriage, with- 
out further action, vested immediately in the husband, and 
the title thereto never again revested in the wife or her 
representatives. 

The Act of 1789, referred to, provided that in all cases 
of intermarriage since the 22nd of February, 1785, the real 
and personal estate of the wife shall become vested in the 
husband. Real and personal property was by this Act 
placed on the same footing and both kinds of property 
descended and was distributed alike. So that by the com- 
mon law and the Act of 1789, the husband became the abso- 
lute owner of the property of the wife, real and personal, 
owned by her at the time of marriage. As far as the law 
could make it, her legal existence was merged in his. 

He was entitled to her earnings, to all moneys made 
by her by keeping a boarding-house, baking bread and cakes, 
and selling them, by sewing, and to the proceeds of her 
labor of every kind. (Wood v. Wilson Sewing Machine 
Co., 76 Ga., 104.) 

She was required to keep house for him and to rear his 
children, and if her behavior did not conform to his views 
he had the right to chastise her provided he did not strike 
her with a stick larger than his thumb. Her jewels and 
personal ornaments vested absolutely in him on marriage. 
In return he became liable for her debts existing at the time 
of the marriage, and he was require,d to furnish her with 
necessaries, such as food and raiment.** 

90 



THE BEAUFORT CONVENTION 

The Savannah River was formed by the confluence of 
the Keowee and Tugalo Rivers; the Tugalo was the bolder 
stream, and discharged the greater water, but the Keowee 
was the longer and reached a latitude farther north. It 
was the head source of the Keowee that Georgia claimed 
as the beginning of her northern boundary, the point at 
which her northern boundary began its westward stretch to 
the Mississippi River. This contention on the part of 
Georgia brought about the dispute with South Carolina, and 
at this point Georgia's boundary troubles began in earnest. 

It would appear that when, according to the claim of 
South Carolina, the Province of Carolina was divided in 
1732 into North and South Carolina, that South Carolina 
became possessed of, or rather claimed, a strip of land 
lying between North Carolina and Georgia from twelve to 
fourteen miles wide and about four hundred miles long. 
This claim upon her part was made in construing Georgia's 
charter from the Crown. She contended that Georgia's 
northern boundary began at the fork or confluence of the 
rivers Tugalo and Keowee and where those rivers lose 
their respective names and the river Savannah begins. 
Georgia's claim, as heretofore stated, was the head source 
of the most northern of these streams forming the Savannah 
River. 

Under the 9th Article of the Confederation of the States 
was provided the manner in which one independent State 
could sue another, with reference to their boundary rights. 
Such suit should begin by petition in the name of the liti- 
gant State to Congress, and a federal court should be pro- 
vided to hear the cause and determine the question in dis- 
pute. Under this 9th Article of Confederation, South Caro- 
lina, by and through her agents and representatives in 
Congress, filed suit against the State of Georgia in Congress 
on June ist, 1785. (Jounrnal United States in Congress 
Assembled, Vol. 10, folios 189, 190, 191, 192,) Notice 

91 



of this suit was given to Georgia by the Secretary of Con- 
gress, and the second Monday in May following was set 
for Georgia to appear and answer, but it was not until 
September of that year that the answqr to such suit was 
filed in Congress, and it was therein asserted and announced 
that South Carolina had proposed an amicable adjusment 
through commissioners to be appointed from both States. 
She, however, submitted herself to the will of Congress. 
The court to try the cause was named by Congress in the 
following manner: The names of three persons from 
each of the thirteen States were enrolled, and from the list 
thus composed each litigant alternately struck one name 
until thirteen were left. The names of these thirteen were 
then placed in a box and nine of them drawn out by lot. 
This nine composed the court to try the cause, and the third 
Monday in June, 1787, was fixed for the court to hear the 
case in New York. 

As set forth in the answer of Georgia in Congress to the 
suit of South Carolina, the latter State had proposed a joint 
commission of the two States to amicably adjust their 
boundary limits, both on the north, east and south. The 
convention was agreed upon by both States, South Carolina 
naming as her commisioners Charles Cotesworth Pinckney, 
Andrew Pickens and Pierce Butler; Georgia named as her 
commissioners Lachland Mclntoch, John Houston and John 
Habersham. In the archives of the Secretary of State's 
office will be found the very interesting correspondence 
between Georgia's then Governor, George Matthews, and 
her commissioners, and between the commissioners of the two 
States, arranging for the preliminaries of the convention, 
and the final report of their proceedings. The Georgia 
commissioners had full, plenary powers. By agreement 
the convention met at Beaufort, South Carolina, on April 
24th, 1787. The commissioners of both States presented 
their credentials which, by each, were inspected and 
approved. Each State then presented its claim and conten- 

92 



tion, and these claims and contentions were discussed and 
warmly debated and considered on the 25th, 26th, 27th and 
28th days of April, and finally on the latter date they came 
to an agreement, the same being concurred in by all three 
of the South Carolina commissioners and by two of the 
Georgia commissioners, John Houston, of Georgia, dissent- 
ing from the findings. Mr. Houston did not think that 
there was any question whatever as to Georgia's territorial 
limits, and did not desire to concede anything to South 
Carolina, even for the purpose of an amicable adjusment. 
His dissent, filed with the report in the Secretary of State's 
office, affords very interesting reading. Both States made 
concessions for the avowed purpose of bringing about cor- 
dial and friendly feelings between the two States. In the 
agreement, South Carolina ceded her claims on the south of 
Georgia — Mr. Houston claiming that South Carolina had 
none — and Georgia agreed to accept as her northern boun- 
dary the head or source of the river Tugalo and the most 
northern branch thereof. This river, while the shorter, 
was the bolder of the two streams forming the Savannah. 
South Carolina was to take the territory lying between these 
two rivers and was to be entitled to the free navigation of 
the Savannah River. This finding was reduced to writing, 
signed by all the commissioners save Houston, whose dissent 
accompanied the findings. The findings of this convention 
were reported to the respective Governors of the States and 
were afterwards adopted. The agreement as to the north- 
ern boundary, in exact language, was as follows : "The most 
northern branch or stream of the river Savannah from the 
sea or mouth of such stream to the fork or confluence of the 
rivers now called Tugalo and Keowee, and from thence the 
most northern branch or stream of the river Tugalo until 
it intersects the northern boundary line of South Carolina, 
if the said branch or stream of the Tugalo extends so far 
north, reserving all of the islands in the rivers Tugalo and 
Savannah to Georgia; but if the head spring or source of 

93 



any branch or stream of the said river Tugalo does not 
extends to the highest northern latitude, shall forever here- 
line to the Mississippi to be drawn from the head spring or 
source of the said branch or stream of Tugalo River which 
extend to the north boundary of South Carolina, then a west 
after form the separation limit and boundary between the 
States of South Carolina and Georgia." 

It would naturally have been presumed that this would 
have terminated the controversy, but it was not so to be. 
It is true that the report and findings of the convention were 
not only reported to the respective States, but were likewise 
reported to Congress, and the suit of South Carolina against 
Georgia therein pending was abandoned, but it was a travesty 
on the good faith of South Carolina, the Hotspur State, 
that on the very day this report was filed in Congress, that 
State, through its delegates and representatives in Congress, 
by legislative authority, ceded to the Federal Government, 
and executed deed thereto, the identical territory that she 
claimed to have released, and did release, to Georgia in the 
convention held at Beaufort. The report, as stated, of the 
findings of the Beaufort convention was filed in Congress 
and there referred to a committee, and it was, so to speak, 
"pigeon-holed," being shelved by reference to a committee, 
and no action has ever been taken thereon, but the deed and 
cession of the territory was, on the day it was offered, 
accepted by Congress. So it would appear that Georgia 
had neither gained nor lost anything by the Beaufort con- 
vention, except that she apparently gained the ill-will of 
South Carolina, and the dispute was thus transferred from 
that State and was henceforth to be taken up with the Con- 
gress of the United States. It has been said that this action 
on the part of South Carolina was with the view of forcing 
Georgia to cede her territory west of the Chattahoochee to 
the Federal government, but it has likewise been charged to 
pique and ill-will. But in any event, it was not an exposi- 
tion of, let us say, at least, good faith, and in this regard it 

94 



would likewise appear that the Federal government occupied 
no higher and no better position than that of South Carolina. 
The Federal government was, under the suit brought under 
the 9th of the Articles of Confederation, the court in which 
was to be determined the controversy between two sister 
States, yet the Court — the government — accepted the terri- 
tory which was under dispute to the detriment of one of the 
litigants. It is charitable to say that it was very worldly, if 
not very just. It was not, however, an act that brought to 
her any good results. This cession of South Carolina, if 
her claim to the territory was valid, conveyed to the Federal 
government a strip of land twelve to fourteen miles wide by 
four hundred miles long, and became a block in the shape of 
a parallelogram between the States of Georgia and North 
Carolina. Thus matters stood for some time. 

On February 17th, 1783, Georgia, through her legisla- 
ture, passed an act offering to cede her western territory to 
the United States. This offer was, in 1788, declined by 
Congress because of the conditions imposed. Subsequently, 
and because of the Yazoo Frauds of 1789 and succeeding 
years, a bill was filed in Congress looking to and providing 
for the cession by Georgia of all of her territory west of the 
Chattahoochee to the Mississippi River. Commissioners 
were appointed by the United States and by the State of 
Georgia, who conferred as to the terms of the cession. In 
the proceedings of the Seventh Congress, (published in 
"American State Papers and Public Laws," Vol. i, folio 
125, for the years 1789 to 1809), will be found a communi- 
cation from Thomas Jefferson, then president of the United 
States, to Congress under date of April 26th, 1802, trans- 
mitting the agreement entered into between the commis- 
sioners appointed upon the part of the United State and 
Georgia, as to the cession of lands by Georgia to the Fed- 
eral government. In conformity with the terms of this 
agreement, Georgia subsequently ceded to the United States 
her territory west of the Chattahoochee, out of which has 
since been carved the States of Alabama and Mississippi. 

95 



'And here is where Georgia "got even," so to speak, with 
the Federal government in accepting the cession from South 
Carolina. This western territory was flooded with the 
claims growing out of the Yazoo Frauds, and it became 
necessary for the Federal government to settle all of these 
disputes. Georgia was covered and quilted with Indian 
claims: it became necessary under this agreement for the 
United States to extinguish all Indian titles in Georgia's 
territory, and it became, in addition thereto, necessary for 
the United States government to pay Georgia one million 
and a quarter dollars, and to cede to Georgia "whatever 
claim, right or title they may have to the jurisdiction or soil 
of any land lying within the United States and out of the 
proper boundaries of any other State, and situated south of 
the southern boundaries of Tennessee, North Carolina and 
South Carolina, and east of the boundaries hereinbefore 
described." It was a very expensive cession of territory to 
the United States and Georgia was immensely benefited 
thereby.^ 

THE WESTERN BOUNDARY 

There seems to have been an understanding that all 
the States would, after the Revolution, surrender to the 
general government their unoccupied lands, then called "back 
land," for the general welfare. (See 13 Howard, 398.) 
We were the seventh and last State to make such surrender. 
After much and long negotiation it was accomplished. In 
April, 1798, the United States began and in 1880 completed 
the legislation under which our compact of 1802 was per- 
fected. By it our western boundary was the Chattahoochee 
River, "running along the western bank thereof, to the great 
bend thereof, next above the place where the Uchee river 
empties into said river; thence in a direct line to Nickojack 
on the Tennessee river," etc.. 

Dr. Miller once told an anecdote about that bend. 
Whert asked how it happened that so many places on the 

96 



other side of the Chattahoochee River are in Georgia where- 
as the Chattahoochee itself is generally understood to be 
the boundary, he said that the surveyors reported to the 
governor that if they commenced at what was commonly 
known as the "big bend," where the Uchee river comes 
in, it would leave a good deal of the Chattahoochee 
River in Alabama, because, running a straight line from 
that bend to Nickojack, everything had to conform to that 
line. The governor said: "We must have all the river. Go 
lower down and find another bend." And so they did, and 
so we got the land. This is repeated as history from Dr. 
Miller, a historian of the first water. 

In consideration of that cession of lands by Georgia, 
the rights of our citizens to their lands in Bourbon county, 
at the fork of the Yazoo and the Mississippi, established in 
1785 and by us repealed in 1788, were protected. The 
United States was also to extinguish the Indians title to the 
country of Tallassee (now part of South Georgia) and 
other specified lands; and the United States therein stipulated 
that the land ceded by Georgia should form "'a State and 
be admitted as such into the Union" when it acquired sixty 
thousand population. Georgia ratified this compact by act 
of June 16, 1802. The contract was that the ceded terri- 
tory was to be made "a State" (one State), but of course 
when the South wished for four senators in Congress instead 
of two, we readily agreed to dividing the territory into 
two States. = 

THE FEDERAL CONSTITUTION RATIFIED 

Georgia ratified the Constitution of the United States 
on January 29, 1788. The people of this State may well 
take a proud satisfaction in the fact that Georgia was the 
fourth State to ratify the Constitution. While other 
States were holding back and bickering over the sacrifices, 
real or imaginary, which they were required to make for 
the common good, the Convention called by the Legislature 
of this State promptly and unanimously, "for themselves and 

97 



for the people of Georgia, fully and entirely assented to, rati- 
fied and adopted the proposed Constitution," hoping that 
their ready compliance would "tend to consolidate the 
Union" and "promote the happiness of the common 
country.''^"* 

THE CONSTITUTION OF I789. 

While the provision as to amendment contained in the 
Constitution of 1777 seems to be exclusive and exhaustive, 
the Assembly on January 30, 1788, provided by resolution 
for the assembling of a convention to consider alterations and 
amendments to the constitution, to convene so soon as offi- 
cial information was received that the Constitution of the 
United States had been ratified by nine states; and proceeded 
itself to select the delegates to such convention. The conven- 
tion assembled in Augusta on November 4, 1788, adoptd a 
constitution, providing that it should not take effect until re- 
vised by another convention, created under a resolution of 
the Assembly, made up of delegates chosen by the people of 
the several counties. This second convention met in Augusta 
on January 4, 1789, and proposed certain alterations. These 
alterations being reported to the Assembly, a third conven- 
tion was called to convene in Augusta on May 4, 1789, to 
consider the constitution and the proposed alterations. The 
third convention in a session of three days ratified the con- 
stitution as reported by the second convention. Thus came 
into existence the constitution known as the Constitution of 
1789." 

This Constitution is the first which set forth in separate 
articles the different subjects of which it is composed, and 
contained in Article IV. the sections intended as a declara- 
tion of "fundamental principles." These sections are as 
follows : 

"Freedom of the press and trial by jury shall remain 
inviolate. All persons shall be entitled to the benefit of the 
writ of habeas corpus. All persons shall have the free 
exercise of religion, without being obliged to contribute to 

98 



the support of any religious profession but their own. 
Estates shall not be entailed, and when a person dies intes- 
tate, leaving a wife and children, the wife shall have a child's 
share or her dower at her option; if there be no wife, the 
estate shall be equally divided among the children and their 
legal representatives in the first degree; the distribution of 
all other intestate estates may be regulated by the law-" 

The provision of the Constitution of 1777 as to clergy- 
men is found in this Constitution also, but as a part of the 
legislative department. 

The plan of a single body, composed of members elected 
yearly from each county, was abandoned after a trial of 
twelve years, and the "House of Assembly" was divided into 
two bodies called a Senate and House of Representatives. 
The members of the Senate were elected one from each 
county for a term of three years. The members of the 
House of Representatives were elected from each county 
annually. 

It provided for the election of a Governor biennially in 
the following manner: the members of the House selected 
three persons from whom the Senate elected the Governor. 
His powers under this Constitution were greatly enlarged; 
he could respite in all cases except cases of Impeachment; 
he could grant pardon in all cases after conviction, except 
those of treason and murder; he could veto legislation, his 
veto to be conclusive unless overcome by a legislative 
majority of two-thirds. 

This Constitution provided that Superior Courts should 
be held twice yearly In each county, and should have juris- 
diction of all cases, civil and criminal, except such as might 
be referred to inferior courts. The Judges of the Superior 
Court were elected by the General Assembly and their term 
of office fixed at three years. By this Constitution, judges 
were allowed to grant one new trial in all cases tried by 
them, and no more. The limitation on the power of the 
Legislature to increase or diminish the salary of the judges 

99 



of the Superior Court auring their term of office (found in 
all of our Constitutions but the first) was a part of the 
Constitution of 1789.^" 

The electorate was greatly enlarged; there was no limi- 
tation as to representatives except as to citizenship, resi- 
dence, age, and the payment of taxes for the year preced- 
ing the election; the words "or being of a mechanical trade" 
were omitted. No man could be a Senator unless he "should 
be possessed in his own right of two hundred and fifty acres 
of land, or some other property to the amount of two hun- 
dred and fifty pounds;" nor a member of the House of 
JRepresentatives unless he should "be possessed in his own 
right of two hundred acres of land, or other property to the 
amount of two hundred and fifty pounds." The words of 
the Constitution of 1777 that these officers be of the Protes- 
tant religion were omitted. 

Property qualifications were extended to the office of 
Governor. No one could be Governor who did not "possess 
five hundred acres of land in his own right within the State, 
and other specie of property to the amount of one thousand 
pounds sterling." 

The Georgians of that day held that a man would 
perhaps make a better Governor who had in his own affairs 
shown evidence of energy, efficiency and thrift. The land 
and other property was to be in his own right, and not in 
the right of his wife. 

The old limitations of power of the government were 
retained in the Constitution of 1789, and new restraints were 
added: 

"All powers not delegated by the Constitution, as 
amended, are retained by the people."^" 

It was provided in this constitution that at the election 
for members of the Assembly in 1794 the electors in each 
county should elect three persons to represent them in a 
convention for the purpose of considering alterations to be 
made in the constitution, such convention to be held at such 
time and place as the General Assembly should appoint. 
There was no other method of amendment provided." 

100 



MCGILLIVARAY AND THE TREATY OF NEW YORK 

Alexander McGilHvaray was the son of a Scotch Indian- 
trader; his mother was a half-breed; her father was Capt. 
Marchand, of the French service, and her mother a woman 
of high rank in her tribe, so that he had within his veins the 
blood of the Scotchman, of the Indian and of the French- 
man. Out of that strange mixture, there grew a marvelous 
personality, who, in his diplomacy, more nearly resembles 
Talleyrand than does any other American-born character 
known to history. He obtained and held almost, if not 
entirely, to the end of his days, an enormous ascendency 
over the Creek Indians, These Indians were known as the 
"Upper" and the "Lower" Creeks. The "Upper'' Creeks 
had for their seat a place near what is now Wetumpka, in 
the State of Alabama. The "Lower" Creeks extended far 
down into the peninsula of Florida. 

McGillivaray held a commission as Colonel in the British 
Army; he held a commission from the Spanish Court; he 
finally held a commission as General from George Washing- 
ton himself. While he received the pay and the emoluments 
of a British Colonel, he was active in having the Indians 
align themselves with the British, and incited them to all 
manner of depredations upon the settlers of these United 
States. 

A treaty at Augusta was negotiated with the Creek 
Indians in November, 1783. Under this, lands were ceded 
to the Oconee River. McGillivaray never recognized that 
treaty; he said it was made by two chiefs who acted under 
duress. A further treaty was negotiated from the town of 
LouisviUe. General Elijah Clark took a forceful part in 
the negotiations which brought about this treaty. 

Under the treaty of Galpinton, the Creeks ceded lands 
to extend from the forks of the Oconee in a southwestern 
direction to the source of the St. Mary's- 

On November 3, 1786, the treaty of Shoulderbourne 
was negotiated. This took its name probably from the 
creek on which it was negotiated. There was no cession of 

101 



lands by this treaty, but it was one of amity and friendship. 
There was, however, no amity or friendship brought about 
by it. 

President Washington, upon reports to him of many 
aggressions by the Indians, came nearl determining upon 
an Indian war, but he desired to make one more effort before 
doing this, and he sent an agent to the Indians, and especi- 
ally to McGillivaray. McGillivaray felt greatly compli- 
mented that the President of these United States should 
have sent a special envoy to him in person. The result of 
this was that McGillivaray and twenty-three other chiefs, 
accompanied by a number of their warriors went to New 
York, and the treaty of New York was negotiated on 
August 13, 1790. It was supposed that this would make a 
lasting peace between the Indians and the Americans. The 
Americans, however, were incensed over it because it re- 
quired them to recognize the Indians as owning on the west 
bank of the Oconee. The Indians were incensed over it, 
because it required them to recognize the cession of lands 
up to the Oconee, and also because it required them to make 
restitution of horses and property and negroes which they 
had stolen from the whites, and as well of prisoners taken 
by them. The result was, that this treaty which was looked 
forward to as the solution of the relations between the In- 
dians and the Americans, proved to be another "bone of 
contention."^'' 

GEORGIA V. BRAILSFORD 

Georgia, in May, 1782, passed an act inflicting penalties 
and confiscating the estate,s of certain persons declared 
guilty of treason. There were a number of clauses to the 
act, specifying the different classes of persons upon whom 
it should operate and to what extent — the word sequester 
being at times used, and at other times the word confiscate. 
Brailsford, a, British subject, and Hopton and Powell, 
citizens of South Carolina, owned a bond for over $35,000 
against Spalding, a citizen of Georgia. They had instituted 
suit in the circuit court of the United States for the district 

102 



of Georgia on the bond and had recovered a judgment. 
Gov. Telfair claimed that this debt had been confiscated by 
the act aforesaid, and pending the suit of Brailsford, had 
directed the State's attorney-general to apply for a rule to 
the circuit court for the admission of the State as a party 
to defend its claim to the debt- The application was duly 
made, but refused. Whereupon the governor filed a bill of 
injunction in the Supreme Court, setting forth the foregoing 
facts, and charging a confederacy between the plaintiffs and 
defendant. 

A majority of the justices, including Chief Justice Jay, 
maintained that Georgia had an adequate and complete 
remedy at law, and decided that the injunction should be 
dissolved and the bill dismissed, unless Georgia should bring 
her suit at law by the next term of the court. This she did„ 
and an amicable issue was made up, as Iredell had sug- 
gested should be done in the equity cause, to ascertain 
whether Georgia or Brailsford was the owner of the debt. 
This issue was tried by a jury, being the first, and one of 
the very few cases. In which a jury was ever impaneled in 
the Supreme Court of the United States. 

The charge to the jury, delivered by Chief Justice Jay, 
was the unanimous opinion of the court. They charged 
that the debts due Brailsford, a British subject, were not 
confiscated by the statutes of Georgia, but only sequestered, 
and that Brailsford's right to recover them revived at the 
peace; that sequestration did no divest property, and that 
Brailsford, during the war, was the real owner of the debt; 
that Georgia's legislative authority had merely prevented 
Brailsford from recovering his debts during the war, but 
that thd restoration of peace, as well as the terms of the 
treaty revived the right of action, otherwise the sequestra- 
tion would be a lawful impediment to the recovering of a 
bona fide debt in direct opposition to the fourth article of 
the treaty. The jury promptly returned a verdict for the 
defendants, and so Georgia lost her case, and with it fell all 
her confiscation statutes.^" 

103 



Brailsford's case turned upon the construction of our 
treaty of 1783 with Great Britain, which Georgia's counsel 
contended, in that regard, provided only that as to subsist- 
ing debts "the remedy shall not be perplexed by installment 
laws, pine-barren laws, bull laws, paper money laws, etc." 
What these quaintly named laws were is a matter for the 
curious. They were like our "alleviating laws" — laws for 
prohibiting suits and staying fi. fas. against soldiers from 
1812 to 1815, about which Wilde wrote a book and which 
acts Judge Berrien held void-^ 

CHISHOLM V. GEORGIA 

The case of Chisholm, executor, v. the State of Georgia 
came on to be argued in the Supreme Court of the United 
States at the February term, 1793, the same term at 
which the motion to dissolve the injunction in the case 
of Georgia v. Brailsford was argued, the latter appear- 
ing to immediately follow the former on the docket. Geor- 
gia was represented in each by the same distinguished Phila- 
delphia lawyers, Dallas and Ingersoll. But in the case of 
Chisholm, notwithstanding Georgia's opinion of the smart- 
ness of a Philadelphia lawyer, they were instructed simply 
to file a remonstrance and protest against the jurisdiction 
of the court, but to take no part in the argument of even 
this question. Chisholm was represented by Edmund Ran- 
dolph, at that time the Attorney-General of the United 
States. Chisholm, executor, as had been his testator, was a 
citizen of South Carolina, and instituted his suit in the Su- 
preme Court of the United States for the recovery of a debt 
which he claimed as executor against the State of Georgia. 
Copies of the writ and process were served early in July, 
1792, by the marshal for the district of Georgia upon Tel- 
fair, the Governor, and upon Carnes, the Attorney-General 
of the State. At the August term, 1792, Georgia having ig- 
nored the suit, Mr. Randolph, as counsel for the plaintiff, 
made a motion, "That unless the State of Georgia, after 
reasonable previous notice of this motion, cause an appear- 
ance to be entered on behalf of the said State on the fourth 

104 



day of the next term, or shall then show cause to the 
contrary, judgment shall be entered against said State, and 
a writ of inquiry of damages shall be awarded." To 
avoid the appearance of precipitancy and to give the 
State time to deliberate, it was ordered by the court 
that the consideration of the motion should be post- 
poned to the February term, 1793. On the motion of the 
Attorney-General, Chief Justice Jay delivered the opinion 
of the court. It was far the longest and most elaborate 
that fell from him while he presided as Chief Justice. 
Indeed, it was an able opinion, well argued and embodying 
those strong federal views which he had always entertained. 
Wilson, Cushing and Blair all wrote opinions coinciding 
with the Chief Justice. Iredell, the great North Carolina 
Justice, alone dissented. The court passed an order that 
the State should appear by the first day of the next term 
of the court, or show cause to the contrary, and in 
the event of failure to do so, judgment by default 
should be entered against her. Georgia still refusing to 
appear at the February term, judgment was rendered for 
Chisholm against the State and a writ of inquiry awarded. 
This writ, however, was not sued out and executed.-" 

The Governor was notified of the rendition of the 
judgment against the State in February, 1793. The Legis- 
lature met in November. The Governor reported the pro- 
ceedings in this cause and on the 21st day of November, 
1793, the lower house passed an act in part as follows : 

"And be it further enacted. That any Federal marshal, 
attempting to levy on the territory of this State, or on the 
treasury, by virtue of an execution by the authority of the 
Supreme Court of the United States, for the recovery of 
any claim against the said State of Georgia, shall be guilty 
of felony, and shall suffer death without benefit of clergy, 
by being hanged." 

This bill was sent to the Senate, but there is no record 
that it was there adopted. Already the Eleventh Amend- 
ment was under consideration in Congress. It was sent to 

105 



the States on March 5, 1794. Georgia seems to have 
been then willing to mark time.'^ 

This amendment was ratified by Georgia at the first ses- 
sion of the Legislature after Its submission. The act of rati- 
fication stated, as might have been expected, that "this legis- 
lature doth entirely concur therewith, deeming the same to 
be the only just and true construction of the said judicial 
power by which the rights and dignity of the several States 
can be effectually secured."^" 

Clark's independent state 

A separate and Independent Government was once set 
up within the borders of this State, against its authority; it 
was dominated by a citizen of this State who was Its creator 
and who had given to the State valiant services. 

This "Separate and Independent Government" was of 
sufficient consequence to attract the most serious attention 
of Washington, Jefferson, Hamilton, and other national 
leaders, and was finally destroyed by military power. 

Citizen Edmund Genet arrived In Charleston on the 
8th day of April, 1793. He came to us as the Minister 
Plenipotentiary of the French Republic, which had just been 
inaugurated. England and France were at war. 

We must take a survey of the status of this country at 
that time. The western limits were at the Mississippi. 
That great stretch of unknown country which we came to 
call "The Louisiana Territory," was then owned by Spain. 
France was then very desirous of retaking it, the granting 
of which it had always protested. Spain was the owner of 
the Floridas. It contended that their northern limits were 
much further north than the limits which we now know, and 
under this contention It claimed a large part of South Geor- 
gia. That means not only what we now know as South 
Georgia, but a strip extending from the Atlantic westward 
to the Mississippi River. The United States were at that 
moment In negotiation with the Spanish Court for the free 
navigation of the Mississippi River. 

106 



The inhabitants along the border were ripe for revolu- 
tion against this country or for warfare against the Spanish 
government, which stood in their way in their demands for 
free navigation of "The Father of Waters." 

Elijah Clark had made an enviable reputation as an 
Indian fighter and had great success in a number of battles. 
He had added further to his glory by an assiduous and suc- 
cessful service in the Revolutionary War, and stood out at 
that time as the most prominent man of rough-and-ready 
battle in the southern part of this country. He was the 
father of John Clark, who was to become the leader of the 
Clark faction of Georgia politics, was to be made the Gover- 
nor of the State, and was to exert a stormy influence in the 
politics of the State long after his expatriation and death, 
even down to the beginning of the Civil War. It is for 
Elijah Clark that Clark County is named, and a monument 
to him stands on the streets of Athens. 

The relations of the United States with the Indians at 
that time were particularly unfortunate. The Creeks 
were greatly incensed over the treaty of New York. 
So, Genet comes upon the scene with the Indians in this 
state of contention, with the French in hatred against the 
Spaniards, the Spaniards in hatred against the French and 
us, a large part of our Western people ready to revolt 
against their own government, and part ready to wage war 
against any government that kept them from navigation of 
the Mississippi River. General Clark was especially in- 
censed, because the treaty which he had negotiated at Gal- 
pinton was, in a large measure, set aside by the treaty of 
New York. 

Genet employed Clark, and advanced to him the sum of 
$10,000.00. Whether this was a salary or sum deposited 
with him for the purpose of meeting expenditures and the 
arming of men, is not made very clear, but he was certainly 
paid that sum of money, and proceeded to organize an 
expedition in favor of the French Republic against Spanish 
forces in North America. 

107 



Genet also procured the assistance of General George 
Rodgers Clark, who had done great service to the country 
in Western Virginia, and who was discontented at the treat- 
ment accorded him by the Government. 

The record is not always clear as to which of these Gen- 
eral Clarks is meant; they were not usually described by 
their initials by the Federal Government. 

Genet's plans embraced an expedition to include those 
residing on the eastern bank of the Mississippi River, and 
also those living on its tributaries. 

They were all to be mobilized at a rendezvous on the 
St. Mary's River in this State, and from thence were to 
attack the Floridas and Louisiana. 

The first authoritative historical statement that we have 
of this is to be found in the correspondence laid before 
Congress by President Washington on the 20th day of 
May, 1794. 

The United States at that time had its principal fort 
in the territory nearest the place which was to become Gen- 
eral Clark's seat, at Fort Fidius, which was on the Oconee 
River, and, as nearly as can now be located, in Greene 
County. 

On April 18, 1794, Constant Freeman, Agent for the 
War Department in Georgia, wrote the Secretary of War 
from Fort Fidius in part as follows: 

"We have been for a long time held in suspense by the 
different reports which have circulated, relative to certain 
persons being employed in this State to recruit a corps of 
troops for the service of France. There cannot now be 
any doubts remaining on the subject. Officers have been 
appointed, and are now acting under the authority of the 
French Republic. Parties of recruits have already marched 
to the rendezvous appointed for them. Several men of this 
corps have crossed the Oconee and encamped opposite 
Greensborough. A small party was for some days opposite 
to the Rock Landing; they have since marched to Carr's 
Bluff, to join with those who had assembled at that place. 
The general rendevous, we are told, is to be on the river 
St. Mary. An agent is appointed to furnish the supplies; 

108 



and he has for that purpose, received ten thousand dollars. 
A person, who was formerly contractor's clerk at this post, 
is employed by him to purchase four thousand rations of 
provisions." 

This letter shows that some of the forces were already 
encamped across the Oconee and that General Clark would 
cross over in ten days to take the command. 

On April 13, 1794, Major Gaither, commanding the 
Federal troops in Georgia, informed the Secretary of War 
that: 

"The French are going on with an expedition against 
the Floridas from St. Mary's, and appear to have many 
friends in this undertaking among tfie inhabitants of this 
State. There is now at anchor, within musketshot of my 
fort, the sloop of war, 'Las Cassas,' about eighteen guns, 
with two hundred men, most of them French, and one com- 
pany of them infantry. They are last from Charleston. 
They say there are thirteen sail, equally large and well- 
manned, yet to come from different ports in the United 
States. There is a recruiting post at Temple, eighteen miles 
up the river from thence. The last account was they have 
eighty men and expect three hundred from the upper part 
of this State." 

Clark is reported to have been on the Georgia side of 
the St. Mary's River with a few men in April; their number 
is estimated from one hundred and fifty to three hundred. 
On May 14th, the Secretary of War makes representation 
to the Governor of Georgia that: 

"General Clark and others have organized themselves 
into a military corps within the limits of the United States 
and are thence about setting out on some military expedition 
against the dominions of Spain, with whom we are at 
peace." 

The Secretary of War called upon the Governor of this 
State to put down this illegal conduct. The Governor had 
been previously apprised that settlements were being made 
on the western banks of the Oconee by General Clark, and 
those under his command, but supposed that the expedition 
and the settlements which were being made across the Oconee 

109 



was by adventurers who had embarked in the French Inter- 
est and in a short time they would of themselves disperse. 
On the 20th of May, Governor Mathews ordered General 
Irwin to direct the settlers immediately to remove. The 
Governor was left under the impression that his order had 
been obeyed, but on July 14th, he was informed that Gener- 
al Elijah Clark, formerly a Major-General in the Militia 
of the State, with a party of men, had encamped on the 
southwest side of the Oconee opposite to Fort Fidius. Ten 
days later General Irwin sent two officers to demand that 
he move. This demand General Clark positively refused to 
obey. The Governor then directed his arrest and proceeded 
to strengthen his military post. Thereupon, the Governor, 
on the 28th day of July, issued a proclamation reciting that 
he had "received official information that Elijah Clark, Esq., 
late a Major-General of the militia of this State, has gone 
over the Oconee River with intent to establish a separate and 
independent government on the lands allotted to the Indians, 
and induced numbers of good citizens of said State to join 
with him in the said unlawful enterprise", and "warning 
and forbidding the citizens of said State from engaging in 
such unlawful proceedings," 

When this proclamatioin was issued. General Clark pro- 
ceeded into Wilkes County, surrendered himself to certain 
Justices of the Peace who considered his case immediately, 
and entered an order of discharge. 

Thereupon his cause becomes popular, and many persons 
flock to his standard. 

On July 30, 1794, the Governor instructs Captain 
Fauche to recruit an extra troop of horse, and especially 
directs that 

"You will be particularly vigilant in preventing pro- 
visions, or parties of men, from being thrown into the posts 
which have been established, without authority, by Elijah 
Clark Esq., on the southwest side of the Oconee," etc. 

Governor Gilmer states that the Indians believed that 
General Clark was establishing this settlement in their terri- 
tory on their account, and they were surprised that George 

110 



Washington did not support him. They believed that under 
the treaty of New York, the General Government would 
do in reference to these lands whatever they wanted. 

General Clark established two forts west of the Oconee, 
one called "Fort Advance," the other "Fort Defiance," 
which was six miles from Fort Fidius. Houses were erected 
within these forts ; a town was laid off at Fort Advance ; Gen- 
eral Clark was chosen Major-General; members were elected 
to a General Committee, called A Committee of Safety, 
"and everything had the appearance of a permanent 
settlement." 

The State of Georgia continued, however, to pursue its 
purpose of causing this government to be put down. George 
Walton, one of the signers of the Declaration of Indepen- 
dence, who was then a judge of the Superior Court, having 
jurisdiction in Richmond and other counties, charged the 
grand juries in his circuit, calling attention to the procla- 
mation of the Governor, wherein it was charged that 
"divers persons have gone over the temporary boundary 
line between the white and Indian inhabitants of this State 
with intent to establish a separate and independent govern- 
ment on the lands allotted to the Indians for their hunting 
grounds." 

He called upon the grand juries to put down this unlaw- 
ful conduct. This did not stop the oganization of the new 
State. The Committee of Safety becomes its governing 
body and is governed by a Constitution. When we recoUoct 
that the governing body of the French Republic in "The 
Reign of Terror" was called "The Committee of Public 
Safety," we realize what an ascendency the French influence 
had obtained over those who were engaged in this enterprise. 

A "Board of Officers" was also elected, and E. Bradley 
was made president thereof. 

General Clark addresses a letter to "The Committee of 
Safety" from Fort Advance, dated 5 September, 1794. He 
felicitates himself upon having met "with the unanimous 
voice of all the officers belonging to the different garrisons." 
He promises to "always endeavor to acquit myself worthy 

111 



of the command committed to my charge." He shows that 
he knows that the artillery at Augusta have been ordered 
to be in readiness to march against him, and that one-third 
of the militia are directed to be draughted. He does not 
believe that the troops will fight against him; he states that 
the troops of Richmond and Burke counties have refused 
to march against him; and believes that the people are with 
him. He states that he is "determinedly fixed to risk every- 
thing with my life, upon the issue, and for the success of 
the enterprise." He tells his men that if they are sum- 
moned to surrender the garrison, they "must refuse with a 
firmness ever accompanying the brave." 

He also records the time of meeting of the "Board of 
Safety" as being 5th of October, that is, the first Monday 
of the month, saying: 

"That is the day on which our Constitution requires 
them to meet." 

He also states: 

"It is entirely out of my power to appoint the 22nd of 
this month, or any other day, if it does not agree with the 
Constitution." 

No trace of the contents of the Constitution can be 
found; but there thus existed every element of an organized 
state or government; a legislative body, a fundamental 
compact, an organization of ofificers. Of course, there was 
a militia established, for the whole thing was born in mili- 
tary establishment. A town was laid off, houses built, and 
two forts erected. These all had the appearance of a per- 
manent settlement. 

General Clark misinterpreted, however, the temper of 
the people. Generals Twiggs and Irwin went to him and 
sought to have him remove, but he declined. Major Adams 
was ordered by General Twiggs to cross the Oconee and en- 
deavor, by persuasion, to remove the settlers from Fort 
Defiance. Major Adams' life was threatened. Thereupon 
Major Adams was ordered to proceed to Augusta and make 
a request upon the Governor for orders to dispossess the 

112 



persons at Fort Defiance. On the 26th day of September, 
General Irwin encamped on the banks of the Oconee opposite 
Fort Defiance. Colonels Merton and Lamar, Major 
Adams, and other officers of the militia crossed the Oconee 
the same day to cut ofl[ communications on the south side of 
the river, and negotiations were then had with General 
Clark, and it was promised if he would evacuate the posts, 
he and his men would be protected in their business and 
property. 

The day following the forts were abandoned, and were 
set upon fire and destroyed, and thus, on the 28th day of 
September, 1794, was ended the existence of the Separate 
and Independent State within the borders of the State of 
Georgia. 

Alexander Hamilton assured the Governor of Georgia 
of the pleasure the President had in knowing the steps 
which were being taken to put down this new settlement, 
and spoke of it as being essentially hostile to our republi- 
can form of government, in that it was proceeding upon the 
idea of a separate and independent government to be erected 
upon a military basis. 

The motives which prompted General Clark in his first 
efforts were, no doubt, his desire to make war upon the 
Indians, and upon the Spanish, and to co-operate with the 
French and to earn the promised or expected rewards to be 
given by the French Government for the service. Georgians 
in general of that day disliked the Indians, had been at war 
with the Spaniards, were in dread of further war with them, 
and were friendly with the French. 

That the public first were in favor of General Clark, 
is probably true, and that opinion is possibly reflected in the 
opinion of the Justices. But when they grew to realize that 
the settlement meant a "Separate and Independant Govern- 
ment" and that the sovereign power of both the State and 
Federal Governments was opposed, this opinion changed, 
the militia did march against the adventurers, and recruits 
ceased to come to them.^' 

113 



THE CONSTITUTION OF 1 795 

On May 16, 1795, the convention (provided for in the 
Constitution of 1789) assembled at Louisville and adopted 
a number of amendments to the constitution.-" 

The amendments, or as they are sometimes called, the 
Constitution of 1795, made very few changes in the organic 
law. It did not change the organization of the Legislature 
as composed of two bodies, a Senate and House. It con- 
tinued the division of the General Assembly and required 
annual elections of Senators and Representatives and annual 
sessions of the Legislature. 

One change was in the mode of electing the Governor. 
This was an election by the General Assembly, the two 
bodies meeting together. His powers, as fixed by the Con- 
stitution of 1789 were not changed. 

No change was made in the judicial department.^* 

THE YAZOO FRAUD 

On January 7th, 1795, the Legislature of Georgia 
authorized the Governor to sell certain portions of its 
vacant lands to four companies, calling themselves "The 
Georgia Company," "The Georgia Mississippi Company," 
"The Upper Mississippi Company," and "The Tennessee 
Company." Under that act, the Governor granted to James 
Gunn, Mathew McCallister, George Walker, William Long- 
street, Wade Hampton, and others, "The Georgia Com- 
pany," certain of those lands for $50,000 cash and $200,000 
to be paid November ist, 1795, secured by mortgages on 
the lands.' 

Letters patent under the great seal of the State and 
signature of Geo. Matthews, governor, were issued on the 
13th day of January, 1795. This wanton dissipation of the 
property of the State, believed to be the result of corruption, 
aroused the people to fever heat. James Jackson, a name 
ever dear to Georgia, then a United States senator from 
the State, afterwards one of her governors, immediately 
resigned his seat in the Senate, and returning to the State 

114 



announced himself a candidate for the Legislature. He 
canvassed the State. A convention was called which sat in 
May, 1795. Petitions and remonstrances on the pant of 
the people and presentments of grand juries were laid before 
it. The convention, Resolved, "that from the number, 
respectability and grounds of complaint stated in the peti- 
tions, that the subject required legislative deliberation, and 
ordered the petitions to be preserved by the secretary, and 
laid before the next legislature." The legislature thought 
this action on the part of the convention invested them with 
conventional powers, quo ad hoc, and gave additional valid- 
ity to their legislative authority, if their powers over the act 
of a preceding legislature should be questioned. They pro- 
ceeded to pass an act denouncing the act of sale as an usur- 
pation of power, unconstitutional and rotten with corrup- 
tion. They declared that the evidence showed that a majoriy 
of the members of the lower house were interested in the 
purchase; and in the senate, where the act was passed with 
one majority, they alleged that more than one member had 
been proven corrupt, and that one overwhelming evidence 
of corruption was Its accepting $500,000 as the considera- 
tion of the sale, when the sum of $800,000, offered by per- 
sons of as large capital, of as much respectability, and on 
terms more advantageous to the State, was refused. They 
therefore declared said "usurped act" null and void. The 
grants were annulled and declared void, and the territory 
declared still the sole property of the State. They further 
enacted, "That within three days after the passage of the 
act, the different branches of the legislature shall assemble 
together, at which meeting the officers should attend with 
the records and deeds in the secretary's, surveyor-general's 
and other public offices, and which records and documents 
shall be then and there expunged from the face and indexes 
of the books of record of the State, and the enrolled law 
shall then be publicly burned, In order that no trace of so 
unconstitutional, vile and fraudulent a transaction, other 
than the Infamy attached to it by this law, shall remain In 
the public offices thereof." 

115 



It was further enacted that the county officers of records 
should produce their books to the Superior Courts at the 
next session after the passage of the law, and the courts 
were directed to cause their clerks to obliterate the deeds 
conveying any portion of said territory therefrom, in their 
presence, and, in the event of the failure or refusal of the 
clerks to do so, they were to be ousted from their offices 
and disqualified from holding any office in the future. And 
if thereafter said officers should enter upon their records 
any transaction, conveyance, grant or contract relative to a 
purchase under said usurped act, they were to be rendered 
incapable of holding any office of trust, and be subject to a 
penalty of a thousand dollars. They further enacted that 
said usurped law should not, nor any grant or deed issued 
by virtue of it, be received as evidence in any court of law or 
equity in the State, to establish a right to said territory or 
any part thereof, but might be used for the recovery of any 
moneys paid or given as the consideration for the pretended 
sales of the original pretended purchasers or persons claim- 
ing under them. And the Governor was authorized to 
refund the moneys to the persons who had deposited in 
payment of the pretended purchased territory. A cer- 
tain mortgage book in which were recorded certain mort- 
gages given by some purchasers of portions of the terri- 
tory, having by the indisposition, mistake or neglect of 
the Secretary of State not been produced at the former 
auto da fe, a supplementary act was passed the following 
year, assembling the two houses of the legislature, requir- 
ing this mortgage book brought before them and that cer- 
tain pages from said book, containing the entries of certain 
pretended mortgages, "be carefully expunged from said 
book, and at or about the hour of 12 o'clock be burnt that 
no trace of so infamous a transaction should remain in the 
public offices of the state." Thus this "usurped act," as our 
fathers called it, and those records of conveyances under it 
were consumed, and contemporary history informs us that 
they were burnt by fire drawn from heaven, the Governor 
using a sun-glass for the purpose.-*' 

116 



The "Georgia Claim," as it was called, came up for 
decision by the Supreme Court in the great case of Fletcher 
V. Peck (6 Cranch, 37.) It went up from the Circuit Court 
of the District of Massachusetts. The decision, covering 
nineteen printed pages, gives a minute history of Georgia's 
charters and boundaries, her cession to the United States 
of land, her compact of 1802, etc. (lb. 95 to 1 14.) 

Peck had bought part of those lands of the Georgia 
Company from Fletcher, who held by a succession of deeds 
dated September 23, 1795, February 27, 1796, and Decem- 
ber 8, 1800. Fletcher has covenanted in his deed that Geor- 
gia had title and seizin, that said authority to sell was good, 
and that said title so conveyed to Peck had been "in no way 
constitutionally or legally impaired by virtue of any sub- 
sequent act of any subsequent legislature of the said State 
of Georgia." The case was argued by Martin for Fletcher, 
and by John Quincy Adams and R. G. Harper for Peck, — 
mainly as to the pleadings. A year later, after adjusting 
the pleadings, it was again argued, on its merits, that time 
Mr. Joseph Story taking the place of Harper, this being the 
only case which Mr. Story argued before that court whose 
bench as an Associate Justice he so long adorned. The 
Supreme Court affirmed the decision below. It held that, 
in 1795, Georgia had the right to dispose of the unappro- 
priated lands within its limits, and that said first act was 
sufficient authority for the grant; that in a case between 
two individuals over a claim under a statute in due form of 
law, a court of law could not inquire into the question of 
corruption of the lawmakers, nor decide it void because of 
corrupt motives of those passing the same; that rights 
vested under a statute could not be divested by a repeal of 
that statute; that a sovereign State cannot pronounce its 
own deed invalid; and that a grant is a contract. It was 
there by Marshall said that States of this Union were 
forbidden by the United States Constitution from impair- 
ing the obligation of contracts, and that all attempts to do 
so were void, because of the prohibition of the Constitution 
or general principles of right. 

117 



The case is familiar to all lawyers. It first declared 
that Georgia was not a "single, sovereign power," but "a 
part of a large empire. She Is a member of the American 
Union," and bound by the limitations of the Constitution 
of the United States (lb. 136.) 

This case has been cited oftener and on more subjects 
than any other decided by that high tribunal. The Supreme 
Court of the United States has adjudged about seventy-five 
cases on that question as to contracts, of which Georgia fur- 
nished about one-tenth. The case of Dartmouth College v. 
Woodward, (4 Whaton, 519-715,) decided in 18 19, is gen- 
erally quoted as the leading case in this country as to the 
nullity of State statutes impairing the obligation of contracts, 
because the learned, classical and brilliant arguments of 
Webster for the college and Wirt for the statute cast such 
an halo of glory over the subject. But the decision had 
already been practically made in Fletcher v. Peck, by Mar- 
shall C. J., who elaborated it in this New Hampshire case. 
(4 Wheaton, 6^6.) 

But the case of Fletcher v. Peck involved far more than 
this contest over so small a body of lands. In February, 
1796, Washington, by special message to Congress, spoke 
of the great grant called the "Yazoo Fraud" as of "exceed- 
ing magnitude, that might in its consequences affect the peace 
and welfare of the United States." In 1789, lands granted 
by Georgia under an act of that date covered more than 
fifteen millions of acres on the Tombigbee, Tennessee and 
Mississippi Rivers, and their tributaries, occupied by power- 
ful tribes of Indians (Creeks, Cherokees, Choctaws and 
Chickasaws), with whom and with Spain, claiming parts of 
the lands, the United States might become involved in war 
on account of what might follow under that grant. Wash- 
ington, as President of the United States, stopped occu- 
pancy of the lands by proclamation. The lands not being 
salable, so circumstanced, were of little value to the pur- 
chasers. They tendered the paper currency of Georgia for 
the balance of the purchase money, and upon its being 

118 



refused, they sued the State in the Supreme Court of the 
United States to enforce their rights. 

In Howard v. Ingersoll, (13 Howard, 409,) is men- 
tioned the case of Moultrie, et al., v. The State of Geogia, 
not reported, growing out of that act passed in 1789, con- 
veying lands between the Mississippi and Tombigbee Rivers 
to the Virginia, South Carolina and Tennessee Yazoo com- 
panies. Those curious to see the case will find it as an 
exhibit to a petition of Moultrie and others to the Congress 
of the United States for indemnity because Georgia refused 
to make titles to the land claimed. It was a bill for specific 
performance. The conveyance called for five millions 
of acres, more or less. The survey showed in the named boun- 
daries over ten millions of acres. The conveyance called for 
the payment of $66,964 in two years. The purchasers tend- 
ered Hillhouse's and Wereat's certificates, which were re- 
fused by Georgia's treasurer. Petitioners said that when the 
act was passed it was stated by members of the committees 
and others that "Rattlesnake money," which was worthless, 
was not to be paid, and that therefore no other Georgia pa- 
per ought to be refused, because mentio unius est exclus'to al- 
teriiis." (Those curious to read the details of those suits are 
referred to vol. i, State Papers, Public Lands, — in the 
library of the University of Georgia.) The Moultrie case 
was never tried. Why? 

That "Yazoo sale," was a small affair compared to the 
"Yazoo Fraud," under which the Fletcher and Peck's case 
arose. Under that "Yazoo Fraud." for $500,000, one- 
fifth was to be cash and the remainder secured by mortgages 
on the lands granted. The Georgia Company was to pay 
$250,000, the Georgia Mississippi Company $155,000, the 
Upper Mississippi Company $35,000, and the Tennessee 
Company $50,000, and take the lands proportionately 
meted and bounded, making perhaps three times as many 
acres as were covered by the "Yazoo sale" of 1789. You 
know how high the political excitement ran, how every man 
who voted for the bill, however good was his character 
before, was denounced as a bribed scoundrel and ostracized. 

119 



You have often heard that our United States Senator Gunn 
(Senator in 1780-1790 and 1791-1801, re-elected just be- 
fore the Yazoo act) was a ringleader in the affair. Albert 
Gallatin, one of Georgia's commissioners, said, and you 
have read it in Gilmer's Georgians, that every man who 
voted for it was bribed save one, which statement Col. 
Chappell's Reminiscences repeats, saying that that one was 
Robert Watkins. 

The plea in Fletcher v. Peck on that point was, that 
members favoring the act "were to have a share of and be 
interested in all the lands which they, the said Gunn, 
McCallister and Walker and their associates, should pur- 
chase of said State by virtue of and under authority of the 
same law, and that divers of said members" voted therefor 
by and under that corrupt influence. 

Even if Fletcher v. Peck was "a feigned case," as John- 
son, J. said, in his separate opinion, he suspected, it seems 
strange that the corruption was not charged more broadly, 
if the facts were in that regard as Gallatin, Gilmer and 
Chappell wrote. 

But surely James Jackson, who drew, and the legislature 
which passed the "rescinding act," stated the case as strongly 
as they felt that facts would justify, in the preamble to the 
rescinding act, which undertook to give page after page 
of reasons justifying its passage. 

That preamble (already quoted in substance) shows 
how much of politics was there in the "grandstand-play" of / 
the rescinding act. Had the purchasers of the "Yazoo sale" 
of 1789 paid for their fifteen millions of acres in cash, 
Georgia would have been happy. But for the credit amount 
they tendered at par our paper currency. Our act of 1783, 
February 11 (Marbury & Crawford's Digest, 185 et seq.), 
throws Hght on this matter. It fixed the value at which 
paper currency was to be taken in settling private contracts, 
Instead of leaving a jury to decide each case on its "equities," 
as we did as to Confederate contracts. It fixed the values 
of Georgia paper for each day from January i, 1777 to June 
I, 1780, beginning with one hundred to one and ending with 

120 



sixteen thousand two hundred and twenty-nine to one ; and 
the values of Continental currency were fixed for every day 
from January i, 1779, when the value was seven hundred 
and ninety-eight to one, and ending June i, 1780, when it 
was eight thousand one hundred and forty-four to one. 

Besides, much of the land covered by the Yazoo fraud 
was claimed by Spain, and by the United States, and all of 
it was a waste howling wilderness, occupied by Indians, 
who, we admitted, had the right of occupancy at least until 
the United States and Georgia should devise and execute a 
plan for their removal, and it was all important to have 
these lands occupied by citizens to come from elsewhere. 

We may well doubt whether, had the bid of $500,000 
been rejected, and that of $800,000 been accepted and paid, 
we would have ever heard of "the Yazoo fraud." We may 
speculate whether it had not been better for Georgia to 
have large bodies of these lands colonized as was the Vir- 
ginia reservation along Broad River, etc., than to cut them 
.up into small parcels as required by our new Constitution 
of 1798 and subsequent legislation. 

The decision in Fletcher v. Peck hurt the United States 
more than Georgia, by improving the market value of lands 
which the United States had agreed to free so that they 
might be owned and occupied by white citizens of Georgia. 
By act of March 31, 18 14, Congress provided for scrip 
to pay "the Georgia claimants." 

We are in the habit of bragging that Georgia gave 
two States to the Union. The truth is, we reluctantly and 
after long delay ceded the territory making almost all of 
Alabama and Mississippi, for a large and valuable con- 
sideration. We got in return the strip twelve miles wide 
along our whole northern border, and $1,250,000 out of 
the first proceeds of sales of our cession. The United States 
set apart a half million of acres to pay claims against the 
lands, agreed to extinguish the Indian title to other parts 
of the lands, paid $3,000,000 to settle the "Yazoo claims," 
and over $6,000,000 for "Yazoo scrip." Jefferson had 

121 



before the decision of Fletcher v. Peck offered $5,000,000 
in settlement, and paid no more than that sum plus interest 
after that decision. 

When, in 1824, the United States was trying to adjust 
accounts with Georgia, they claimed $7)735i243 to have 
been paid out on account of "Yazoo claims," etc. In reply. 
Governor Troup, in his message of that year, stated that 
the payments on account of "Yazoo claims" Avere but $4,284- 
151, and that Georgia ceded to the United States eighty 
million acres of land, worth $1.25 per acre at a low valua- 
tion, and that, therefore, we should charge for that land 
in settlement $92,264,757. And he then proceeded to tell 
the legislature of the hostility of the Union to our State, 
to warn them of the danger of "'consolidation" and the 
like, and closed his message with the hope for the States 
that "no baleful comet may, in its irregular course, strike 
one of them from its place, and, deranging the system, 
bring back chaos and confusion."' 

THE PINE-BARREN SPECULATIONS 

It had become evident by the year 1794 that the head- 
right system was not working as it should. By an Act of 
that year, upon complaint made, the Governor was author- 
ized to suspend any survey, and after advertising for sixty 
days, hear evidence of its propriety, and also to inquire into 
and annul surveys already made. A practice, too, of trans- 
ferring warrants', and having the same re-issued to the 
transferree by the land court, seems to have sprung up, 
for the same Act prohibits the surveyors from surveying 
under any warrant unless the holder would swear the same 
was issued on his own head-rights or bounties; and the 
warrant must have issued since loth of December, 1789. 

The several head-right Acts hereinafter recited, it vrill 
be noticed, were designed to divide the land among those 
who should prove settlers, and not to sell them in immense 
tracts. Each Act limited the amount to be obtained on the 
head-rights of any one family to one thousand acres. Vari- 
ous requirements of settlement thereon, and improvement 

122 



thereof, were made. And yet these laws were all set at 
naught and thousands of acres found their way into the 
hands of single individuals. It is thought to be true that 
unscrupulous persons obtained these head-right warrants, 
and finding a market, sold them, before survey, to persons 
who thus acquired large tracts. 

It is evident from the prohibition in the Act of 1794, 
that the land courts would re-issue new warrants in lieu of 
the old, to the purchaser in his own name. In this way 
much land would be granted to one name. Doubtless 
unscrupulous speculators procured these warrants to be 
issued to their creatures and transferred to themselves, in 
many instances, and it is doubtless true that a construction 
was put on the law in some cases, whereby hundreds of 
grants (speaking advisedly) of one thousand acres each 
were issued to the same person on the same day. The 
activity of the land office increased greatly, so much so that 
in the term of Governor Matthews, in i794-'95, over twenty 
volumes of more than nine hundred grants per volume were 
registered by the Secretary of State. In some of these 
upwards of two hundred consecutive pages will contain 
grants to one individual. The books of the surveyor-general 
are also full of curious matter. In four books, containing 
between three and four thousand surveys, each of one thou- 
sand acres, one entire book, and part of another, contained 
the lands surveyed to one man, aggregating to one million 
two hundred and five thousand acres. Seventeen other 
names embrace the rest of these books. These grants vary 
from four hundred and seventy trousand acres, down. Many 
of the surveys are made by the grantee, or surveyor. Very 
few persons, other than one of the eighteen grantees, acted 
as surveyor. They exchanged compliments. By a report of 
the surveyor-general made in 1839, it can be seen that the 
amount of land granted in these head-right counties far ex- 
ceeded the land actually within them. It is doubtless true 
that duplicate grants exist to much of this land. 

A partial explanation to this state of affairs is to be 
found in the unsettled condition of the country and official 

123 



carelessness; a further explanation can be found in the rise 
and progress of the "pine barren speculations" of i794-'95, 
which excited much indignation at the time; but into which 
no full inquiry was ever made. 

By the Act of 1793 the lower part of Washington 
county had been cut off and formed into Montgomery. It, 
with a large part of Washington, was composed of barren 
lands covered only by dense pine forests. Here it was 
that this great fraud was perpetrated. The story is briefly 
this: In the year 1794, following the creation of Mont- 
gomery county, a band of unprincipled speculators combined 
to debauch the county officials to secure enormous grants 
of land to which they were not entitled; to have lands 
granted even beyond the quantities in the several counties; 
to have their land marks so described as to indicate rich 
soil; and to go into the far distant States and sell to unsus- 
pecting purchasers. 

The Hon. Absalom Chappell, in his "Miscellanies of 
Georgia," thus describes the working of this scheme 
"f fraud : 

"The plans of the miscreants were well laid and un- 
flinchingly followed out. In the vast uninhabitable woods 
they planted or found at wide distances, the necessary 
accomplices and tools. First, men who were to act as 
magistrates and form one of those peculiar legal devices 
of that day called Land Courts; of which the function was 
to issue or rather to profess to Issue the land warrants 
which were the initial step under the head-right system. 
Next, other men were planted or found, who as county 
surveyors were to make, or rather to profess to make, and 
return the locations and surveys contemplated by these 
warrants. And the pains were also taken to have all these 
oflicial accomplices regularly elected and commissioned to 
the offices they were intended to abuse; their election to 
which was a thing not difficult to effect among the ignorant 
unsuspecting settlers scattered thinly over the immense 
wilderness, and It was this obvious facility of electing men 

124 



that could be used as tools, that undoubtedly stimulated and 
encouraged, if it did not originally suggest, the idea of the 
great pine barren speculation; the whole machinery of which 
stood on these basely designed elections. Here, too, more- 
over we see the reason why this fraud followed so quickly 
after the formation of Montgomery county, and had not 
been attempted or even conceived sooner. For as long as 
the territory remained a part of Washington county, the 
voters entitled to a voice in these elections, were altogether 
too numerous, intelligent and vigilant, to have permitted any 
hope of success in such a conspiracy. 

"Not satisfied with seizing two or three millions of acres 
which existed, they trebled the number and went to the 
extent of issuing from the surveyor-general's office, land 
forgeries to the extent of six or seven millions of acres. 

"Some genuine grants for good lands were artfully 
mingled with all of these grants and the character of soil 
in the pine barrens held up as fertile by describing the 
corners of the grant in hickory, dogwood, walnut, etc." 

These grants were then carried North and reports of 
the rich new lands of Georgia, and the new lands on the 
Oconee River, which had reached there, enabled these swind- 
lers, in many instances, to sell the lands called for by their 
grants. It is said that many a person would come to Georgia 
in expectation of settling the rich grant of land he had 
bought, only to learn that it was impossible to find it or its 
boundaries, and to see only the unbroken pine forest 
around him. 

The utter insufficiency of the head-right system had by 
this time been demonstrated, and it had become evident that 
a new method would, of necessity, be adopted in the distri- 
bution of the new lands which the treaties with the Indians 
were bringing within the gift of the State. The old counties 
of the State were so cut up by grants heretofore made, that 
in them it was not deemed advisable to attempt a new sys- 
tem. But in the new territory acquired by the treaty of 
Fort Wilkinson in 1802, and in the lands subsequently 

125 



acquired from the Indians throughout the balance of the 
State, the Lottery System was adopted. The method, as 
tried the first time with the cession of 1802, was continued 
with but few alterations until the territory of Georgia had 
been distributed.* 

THE CONSTITUTION OF 1 798. 

Among the amendments adopted by the convention of 
1795 was an article declaring that at the general election 
in 1797 delegates should be chosen to assemble in conven- 
tion at Louisville on the second Tuesday in May, 1798, to 
consider further alterations and amendments. The conven- 
tion thus provided for assembled at the time and place 
fixed, and on May 13, 1798, adopted and declared of force 
the constitution known as the Constitution of 1798.^' 

The country was at peace, the people were looking to 
the future. The wisest and best of the two previous Consti- 
tutions was retained. The same form of government was 
preserved, with the same limitations. But much had been 
learned from experience. The powers of the government 
were more specifically defined, and the rights of the people 
were more securely safeguarded against the government. 

The separation of the departments of the government 
was stated with even greater emphasis.^** 

This Constitution remained in force, except as altered 
by amendments adopted by the General Assembly, until 
1 86 1. It contained no separate article known as a "bill 
of rights," but in it we first find these fundamental principles : 

"No holder of public money shall be eligible to ofiice. 
No debtor, where there is not a strong presumption of 
fraud, shall be detained in prison after delivering up his 
real and personal estate for the benefit of his creditors. No 
slave shall be maliciously dismembered or deprived of life." 

The organization, composition, election and sessions 
of the General Assembly provided by the Constitution of 
1795 were adopted by the convention of 1798, and remained 

126 



of force until changed by a special amendment of that Con- 
stitution in 1840, when the sessions of the Legislature be- 
came biennial." 

Senators and Representatives were required to be sol- 
vent; they could not be the holders of public money 
unaccounted for; nor defaulters as to taxes or other govern- 
ment contributions.^*' 

The Constitution fixed the qualifications of a Senator as 
not under twenty-five years of age and nine years citizenship 
in the United States, and three years an inhabitant of the 
State, with the further condition that he "is and shall have 
been possessed, In his own right of five hundred dollars, or 
taxable property to the amount of one thousand dollars, 
within the county, for one year preceding his election, and 
whose estate shall on a reasonable valuation, be fully compe- 
tent to the discharge of his just debts over and above that 
sum." The qualifications of a Representative were the same 
save that the age limit was reduced to twenty-one years, citi- 
zenship in the United States to seven years, and the value 
of the freehold estate necessary to own to two hundred and 
fifty dollars or other taxable property to the value of five 
hundred dollars.^" 

The property qualification was removed by amendments 
of 1834 and 1835. They were free from arrest during the 
sittings of the Assembly, and ten days immediately before 
and after, except for felony, treason, or breach of the peace; 
and were required to take the following oath: 

"That I have not obtained my election by bribery, 
threats, canvassing, or other undue or unlawful means used 
by myself or others by my desire or approbation for that 
purpose. "^^ 

This Constitution reads: "Every person shall be dis- 
qualified from serving as a Senator or Representative for the 
term for which he shall have been elected, who shall be con- 
victed of having given or offered any bribe or treat, or 
canvassed for such election; and every candidate employing 
like means and not elected, shall on conviction, be ineligible 

127 



to hold a seat in either house, or to hold any office of honor 
or profit for the term of one year, and to such other disabil- 
ities and penalties as may be prescribed by law." 

It is probable that these unusual and rigorous qualifica- 
tions were due to the disclosures of the Yazoo Fraud. 
Many and serious were the charges of corruption, debauch- 
ery and bribery of members of the General Assembly in 
order to secure the passage of that objectionable Act. A 
Justice of the Supreme Court of the United States (Mr. 
Justice Wilson, who had rendered the country great serv- 
ice in the Constitutional Convention and who had gained 
wonderful fame as a lawyer of splendid power. His was 
the master mind which accomplished the passage of the 
Acts under which the Frauds were consumated.^'), a Dis- 
trict Judge of the United States and a United States Sena- 
tor of Georgia were alleged to be implicated in the bribery 
of the Legislature, and it would seem that when the Consti- 
tution of 1798 was written, the people, profiting by their 
experience in this matter, thought they could insure them- 
selves against a repetition of this fraud by these qualifica- 
tions for membership in the General Assembly.^" 

The Governor was to be elected by the General Assem- 
bly; and, until the amendment of i845-'47, he must have 
possessed, over and above just debts, five hundred acres 
of land, in his own right, within the State, and other 
property to the amount of five thousand dollars.^" 

The Executive Department was enlarged in 1798 by 
the creation of two new offices, those of the Treasurer and 
Surveyor-General.^* 

Originally, practically all the officers were elected or 
appointed by the General Assembly. From time to time 
amendments were adopted, providing for election by the 
people. 

The plan of appointment, however, remained as to the 
Secretary of State, the Treasurer and Surveyor-General. 

Official purity was assured by making all persons con- 
victed of felony ineligible to any office or appointment of 
honor, profit or trust, within the State.^** 

128 



The judicial powers were vested in a Superior Court 
and such inferior judicatures as the Legislature should 
establish. ==" 

No higher court was authorized by any constitution 
of the State prior to 1843. The power to establish a court 
of review, with authority to set aside verdicts, was, no doubt, 
purposely withheld as inconsistent with that principle of 
government, then regarded as fundamental, that all power 
and authority resided in the people, and especially with the 
Anglo-Saxon conception of that principle, that the people 
were alike the source of authority and of justice. With 
that principle both the Legislative and the Judicial depart- 
ments of the government were made to conform. Legis- 
lators and judges were alike given short terms and other 
limitations equally significant were prescribed. Every juror 
was made the judge of the law as well as of the facts of 
every case submitted to him, and the verdict of the jury was 
deemed to be the ultimate expression of justice. Upon 
the juries, therefore, was placed the responsibility for the 
protection of society and for the administration of justice. 
The seat of power was not on the Bench, but in the jury 
box. The fear of a concentration of power in a few officials 
was sufficiently strong to prevent a disregard of any of the 
limitations imposed upon the judicial systems, authorized by 
the Constitutions of 1777, 1789 and 1798. But gradually 
that fear subsided. The good behavior of the Judges, their 
considerate demeanor and wise discretion In the exercise of 
their limited functions evinced a purpose on theln part 
to conform themselves and their administrations to popular 
ideals. Such was the condition when the bill to amend the 
Constitution, so as to authorize the establishment of a 
Supreme Court, was passed by the Legislatures of 1842 and 
1843. By that amendment there was Imbedded into the 
Constitution of 1798 the foundation of a temple, destined 
to become the chiefest glory of the State. ^' 

The Superior Court was given exclusive jurisdiction 
In criminal cases, and in cases involving title to land, 
and was empowered to correct the errors of Inferior judica- 

129 



tures. The Inferior Court was given jurisdiction in all other 
civil cases, but the Legislature was authorized to confer 
concurrent jurisdiction on the Superior Court. 

The powers of a Court of Ordinary, or register of 
probate were vested in the Inferior Court, its decision being 
subject to the right of an appeal to the Superior Court. ^"^ 

The Justices of the Peace were given "power to try 
all cases of a civil nature within their district w'here the 
debt or demand does not exceed thirty dollars. "-' 

The Judges of the Superior Court were elected by the 
General Assembly for a term of three years. The Justices 
of the Inferior Court were elected by the General Assembly 
to hold during good behavior. The Justices of the Peace 
were appointed by the Justices of the Inferior Court of 
the county, two for each district, to hold during good 
behavior. 

The Judges of the Superior Court and the Justices of 
the Inferior Court were removable by impeachment, or on 
the address of two-thirds of the General Assembly. 

Justices of the Peace were removable by conviction for 
malpractice, felony, or infamous crime, or on the address 
of two-thirds of the General Assembly, (Watkins' Digest, 
PP- 39-40).^" 

This provision for the "recall of Judges" was carried 
forward Into the amendment of 1834; was retained in the 
Constitutions of 1861, 1865, and 1868." 

In the Constitutions of 1789 and 1798, no limitations 
were laid upon legislative authority, either as to the raising 
or appropriation of the revenues.^^ 

Our first legislature exercised the privilege of granting 
divorces on such grounds as they saw fit, having taken this 
over from Parliament. In 1798 the Constitution provided 
that divorces could not be granted by the legislature except 
upon two-thirds vote and after a jury in the Superior Court 
had authorized a divorce upon "legal principles." This 
prevailed until the amendment to the Constitution of 1835, 

130 



which provided that a divorce could be had by the concurrent 
verdicts of two juries, finding a divorce upon "legal 
principles." 

Our Supreme Court first defined "legal principles" in 
1846 holding that the Canon Law of England, as a part of 
the Common Law, was adopted by our Statute of 1784, 
and prescribed the grounds of divorce, — that total divorce 
could be granted only for adultery and cruel treatment.''^ 

"It is an ill wind that blows nobody good," and so 
with all the charges against the celebrated Yazoo Act, it 
was the occasion of Georgia's devising a novel and radical 
restraint upon legislation, one which has made the courts 
more potent in arresting and setting aside laws than any- 
thing in the history of legislation, unless it be the decision 
in the Dartmouth College case; with this difference, how- 
ever, that decision, whether it made for good or for evil, 
has largely spent its force, but this provision of the Consti- 
tution of 1798, with its twin principle of requiring single- 
ness of subject-matter copied into most of the new Consti- 
tutions promises to make the courts yet more powerful in 
the future. Prior to the time of this constitutional require- 
ment. Parliament and legislative bodies adopted their own 
methods of passing laws. The title was no more a part of 
an Act than the title of a volume is a part of the book. 
The Constitution of 1798 created a new rule and provided 
that "no law or ordinance shall pass containing any matter 
different from what is expressed in the title thereof," "The 
tradition being that it was inserted in the Constitution at the 
Instance of Gen. James Jackson; its necessity being caused 
by the Yazoo Act, which is alleged to have been smuggled 
through the Legislature under the caption of 'An Act for 
the payment of the late State troops'," (4 Ga. 38.) 

This is believed to be the first Constitution in which 
any such provision is to be found. The Constitution of the 
United States and the older Constitutions of the thir- 
teen original Colonies contain no such restriction, although 
nearly all of the more recent Constitutions of the old as 

131 



well as the new States have the same or analogous pro- 
visions.^ 

Mr. McElreath in his recent admirable work on the 
Constitution of Georgia, says : 

"It is an interesting fact that the Constitution of 1798 
is the only constitution ever adopted by the people of Geor- 
gia at a time when there was not a virtual revolution of the 
government itself. The Constitution of 1777 was adopted 
in consequence of the casting off of the State's allegiance to 
Great Britain and of the necessity of setting up an indepen- 
dent government; that of 1789, on account of the abandon- 
ment of the Articles of Confederation, and the adoption of 
the Federal Constitution; that of 1861, on account of the 
secession of the State from the Federal Union; that of 
1865, on account of the fall of the Confederacy, and the 
necessity of obtaining re-admission into the Union; that of 
1868, on account of the refusal of the Federal Government 
to re-admit the State under the Constitution 1865, making 
the adoption of another Constitution a condition precedent; 
that of 1877, when the people of Georgia resumed control 
of their own affairs after the end of the reconstruction era. 
The Constitution of 1798, and the present Constitution are 
the only ones which represent a settled condition of the 
State's organic law; the others represent temporary condi- 
tions and transitional periods." (McElreath on the Consti- 
tution of Georgia, p. 114, Sec. 87.)^' 

The Constitution was to be amended only by two-thirds 
vote of each House at two consecutive sessions of the 
Assembly. 

During its life of 63 years, it was amended 22 times, 
but while it was democratized by removing property qualifi- 
cation from representatives, and by the election of officers 
by the ballot of the people, there was, with the exception of 
the creation of the Supreme Court, no radical change in the 
spirit and form of the government and the limitations on its 
powers. How long this great instrument, but for the seces- 
sion, would have survived, is beyond the ken of states- 
men. Certain it is that in 1861 it showed no evidence of 
weakness or decay. ^^ 

132 



THE LAWS COMPILED AND PUBLISHED 

In March, 1773, a petition from the Inhabitants of 
Augusta was presented that all the laws the Legislature may 
think conducive to good government may be compiled and 
printed in one Code. (15 C. R. 421). Nathaniel Pendleton, 
in 1776, was elected Commissioner to codify the laws, but 
either because he declined to undertake the work or for 
other reasons, the statutes were not published, and several 
times the Grand Jury of Richmond County called attention 
to the serious consequences resulting from the failure to 
print the laws; — 

"We present as a Grievance that the Justices have not 
been furnished with such Acts of Assembly as are now In 
force as well those passed before the Revolution or since, 
and recommend that a number of copies may be bound 
together and lodged at the Printing Office 'For Sale' that 
the citizen may at least by purchase have it in his power 
to know of the penal laws of this State." (Minutes 1783, 
96, 46, 134, 202). -^ 

In 1786 an Ordinance was adopted "to appoint some 
person therein named to digest and arrange all the laws 
passed in this State before or since the Revolution," but 
nothing was done under Its provisions, and Georgia still 
remained without any accessible or printed records of its 
Statutes. It had existed for sixty-seven years; many laws 
had been passed, some had been lost, and from what Is said 
In Watkins' Preface we may infer that the failure to publish 
was caused by some unknown but selfish Interest. For It 
is there quaintly stated that the compilers "had determined, 
though, strange to relate, not without opposition, to encoun- 
ter the task of compiling the whole of the State's laws into 
one view * * * * upon the credit of their own 
fortunes, and hazard its success upon their individual repu- 
tations * * * * Many laws have never been pub- 
lished; some are entirely lost or destroyed; others are in 
a tattered and mutilated condition, and the mass from 

133 



which this collection is made has hitherto been as much out 
of the reach of the public use as the laws of Caligula."^ 

Robert Watkins took a prominent part in the public 
affairs about this time (28 Ga. 338), and may have been 
the draftsman of that clause of the Constitution (1798) 
which provided that "within five years * * * * ^j^g 
body of our laws, civil and criminal, shall be digested 
and arranged under proper heads, promulgated in such 
manner as the Legislature may direct." At any rate, it 
is evident from the commendation of Geo. Walton and 
others, dated November 15th, 1798, that Watkins' Digest 
was in preparation before the adoption of this provision of 
the Constitution. The Assembly of 1799, when the Digest 
was actually in press, (note to preface to Watkins' Digest) 
passed a Resolution "that from a conviction that the Digest 
is a work of great labor, and must and will be of importance 
in forming a complete Digest agreeable to the 8th Section 
of the Constitution, * * * * George and Robert 
Watkins are entitled to generous retribution for their labor 
and exertion * * * * ^nd that the sum of $1,500 be 
appropriated accordingly." 

But because the Digest contained the Yazoo Act, Gov. 
Jackson disapproved the appropriation. Watkins insisted 
that other Acts, which were repealed, were also published 
in full, and he had, in the same way, inserted the Yazoo 
Act with the Act repealing it. The Governor replied that 
the rescinding- Act had declared that the Yazoo Act never 
had been law. It, therefore, needed no repeal and conse- 
quently had never been entitled to a place in the Digest. 

It has not often, if it ever before, happened that a law 
book caused the shedding of blood, but the correspondence 
and feeling between the author and the Governor became 
so acrimonius that it resulted in an old-time, dignified, cour- 
teous and bloody duel "which was conducted in the highest 
style of punctilio." While the seconds were arranging the 
terms of the combat, the principals conversed with great 
elegance and entire politeness on different matters." Then 

134 



the seconds notified the combatants of the terms agreed on. 
"You are to stand at a distance of ten paces; you are to 
fire at the words 'make ready, fire!' A snap or flash to 
be counted as a shot, etc., etc." At the first fire both pistols 
went off into the ground. The second was a blank. At 
the third Gov. Jackson fell, shot secundem artem, in the 
right hip. He insisted on another fire, but the surgeons 
claimed the right to first examine him, and on their report 
that the bullet might have entered the cavity, hostilities 
ceased. Mr. Watkins, with great civility, offered his ser- 
vices to bear the wounded man from the field, and on being 

carried off, the Governor most affably remarked: "D n 

it, Watkins, I thought I could give you another shot." 
(History of Augusta, 1890, p. 227.) 

After ten years, the Supreme Court of the United States, 
in Fletcher v. Peck, 6 Cranch, 87, having decided that the 
Yazoo Act was not only constitutional, but could not be 
repealed to the injury of third persons, Watkins and his 
friends claimed the decision to be a more substantial vindi- 
cation of his Digest than had been the precision of his aim in 
the duel. 

Still, with a view of obviating all objection and to 
appease so influential an opponent, another edition was 
printed in 1801 from identically the same plates, but omit- 
ting the pages containing the Yazoo Act. This explains 
why the title-page is sometimes dated 1800 and sometimes 
1 80 1. The issue, however, had been made, and even this 
omission did not satisfy the Legislature. It is true that the 
Watkins brothers secured a small appropriation, but their 
book was not only never authorized, but in 1800 the Legis- 
lature passed a Resolution that "the appropriation of $2,000 
in favor of Robert and George Watkins was solely intended 
as an advance to cari-y on a work, which they represented to 
be a collection of the laws now of force in Georgia; and 
by no means, nor in any shape, contemplated to establish 
the same as a Digest or Constitutional arrangement of said 
laws; nor to give any legislative sanction to the same as a 

135 



Code to be received in the Courts of Law and Equity; 
reserving the revision, expulsion, or sanctioning of the same 
or any law thereof to future sessions of the Legislature." 

And further to emphasize the hostility to this famous 
Act, a resolution was adopted December, 1800, that "the 
Commissioners appointed to digest the laws, previous to 
entering on their duties, shall subscribe the following oath : 
"I solemnly swear that I will to the best of my power and 
ability, and agreeable to the Constitution, revise, digest and 
arrange under proper heads and subjects the Civil and 
Criminal laws of this State, and that I will in no wise or 
manner whatsoever insert in said Digest, a certain usurped 
Act, entitled "An Act for the appropriating a part of the 
unlocated territory for the payment of the State troops." 
(Marbury & Crawford, 190-191.)^ 

To carry into effect the provision of the Constitution, 
Horatio Marbury and Wm. H. Crawford, Esquires, under 
authority of the Legislature, prepared what was styled a 
"Digest of the Laws of the State from its Settlement as a 
British Province in 1755 to the Session of the General 
Assembly in 1800, inclusive." It was published in the year 
1802. In it the laws of the State were brought together and 
bound in one volume. The entire acts, embracing captions, 
preambles, and all the signatures, were reprinted. They 
were arranged alphabetically according to subject-matter. 
The book was not a revision, nor was it a digest; it was a 
compilation, pure and simple.^- It omitted many acts which 
had been repealed, and Watkins' Digest, — now out of print 
and very scarce and the most valuable of all our books for 
historical purposes — while giving in chronological order our 
known statutes, yet failed to print, except by title, many acts 
which had been repealed: — others because they were obso- 
lete, or "repugnant to the form of our Government" (p. 
,54) — a round-about way of saying "unconstitutional". 
Still Watkins' contains the great body of Colonial and early 
statute law." 

136 



THE JUDICIARY ACT OF 1 799- 

Under the authority conferred upon it in the Constitu- 
tion of 1798, the General Assembly, by the Judiciary Act 
of 1799 (Cobb's Digest 185 1, p. 1135), established the 
procedure in the Superior and Inferior Courts. The juris- 
diction of and the procedure in the Justices' Court remained 
substantially as provided in the Act of 1797,^" but it was 
provided that no Justice should "sustain or try any satis- 
faction in damages for any trespass on the person or 
property.^^ 

It may be said with reasonable accuracy that this Act 
marks the real beginning of our present system. 

It was a system which embraced three courts. The 
Superior Court with exclusive jurisdiction in criminal cases 
and land cases, and concurrent jurisdiction with the Inferior 
Court in all other civil cases. The Inferior Court with ex- 
clusive jurisdiction in matters of probate, and concurrent 
jurisdiction with the Superior Court in all civil cases except 
land cases. The Justices' Court with civil jurisdiction of 
suits on debts where the amount involved was thirty dollars 
or less, and with such jurisdiction in criminal matters as 
were derivable from the common law. 

The Superior Court had the right to review the judg- 
ments of all the other courts. There was no court which 
had the right to review the judgments of the Superior Court. 

In 1799 there were twenty-four counties in the State. 
These were grouped into three circuits. Eastern, Middle 
and Western, and there was a judge for each circuit. 

The distinguishing defect in this system was the absence 
of a single court of last resort. There were three courts 
of last resort independent of each other, and whenever a 
new circuit was created a new independent court of last 
resort came into existence. =" 

Georgia alone of any American commonwealth had a 
judicial system without an Appellate Court. Georgia alone 
had no tribunal to correct errors affecting the rights of the 
private citizen, and Georgia alone of any Anglo-Saxon 

137 



State attempted for many years to conduct government with- 
out a supreme judicial tribunal necessary to preserve uniform- 
ity in the administration of justice. It was not accidental, 
but intentional, and in pursuance of a definite public policy. 
It furnishes a rare fact in history, worthy of study by the 
student of political affairs. 

Immediately after the Declar'atlon of Independence, 
twelve of the newly-created States had courts Tor the correc- 
tion of errors. These Supreme Courts had begun to publish 
their opinions, and before the year 1800, as many as thirty 
volumes of these early reports had been printed. 

But there was nothing like this in Georgia. Neither 
of our three early Constitutions said anything about a Su- 
preme Court. The Constitution of 1798 authorized the 
Superior Court to correct errors in and to grant new trials; 
but the new trials were to be granted and the errors were to 
be corrected in the county in which the action originated. 
But there was no appeal to any other or higher tribunal. 

The next year after the adoption of the Constitution the 
Legislature passed the Judiciary Act of 1799, a statute which 
has permanently affected and molded our whole system. 
It was the great work of great men. They endeavored to 
supply the deficiency in the Constitution by establishing a kind 
of Court for the correction of errors. The 59th section of 
the Act of 1799 provided that the Judges of the Superior 
Court should meet annually at the seat of government for 
the purpose of making rules and while they were thus in 
convention, the Judges were required to "determine upon 
such points as may be reserved for argument, and which may 
require a uniform decision." 

This in effect would have been a Supreme Court com- 
posed of the Superior Court Judges sitting in banc — some- 
what after the fashion of the one then in South Carolina, 
and not essentially different from the Court of King's Bench 
in England and the Supreme Court of the United States, 
where the Judges of the Appellate Court are also Judges of 
the Circuit Court. 

138 



But this provision of the Judiciary Act was never allowed 
to become operative. So much of the Act of 1799, as re- 
quired the Judges to meet at the seat of govrnment to make 
rules of court was allowed to remain of force, but the provi- 
sion that they should there "determine cases reserved for 
argument" was repealed by the Act of 1801, and — "all 
points reserved for argument, and now awaiting a decision 
at the seat of government are hereby directed to be sent 
back to the respective counties from whence they have been 
sent, to be there decided by the presiding judge." — ^Watlcins' 
Digest 39 (i), 708 (59) ; Clayton's Digest 38 (3 and 4). 

So that, what the wisdom of the authors of the Judiciary 
Act of 1799, had attempted in creating, at least, a statutory 
Supreme Court, was destroyed by the Legislature of 1801, 
and the State was led to a continuance of an experiment that, 
in the end, proved to be an admitted and pronounced 
failure. ^^ 

It evidently did not require very much to run the govern- 
ment, and taxes may have been of less importance than 
now; $1,000 of old public debt could be paid with one 
dollar, and judges only received a salary of $1,400, besides 
being required by the Judiciary Act of 1797 and that of 1799 
to preside in each circuit alternately, "so that no two terms 
shall be held by the same judge in the same circuit succes- 
sively," which practice is still followed in North and South 
Carolina. (Marbury & C. 272, 308, 60) 

Strange to say, the author of the Judiciary Act Is not 
certainly known. The credit for Its preparation has been 
assigned by Col. Chas. C. Jones to Abraham Baldwin; by 
Judge Richard H. Clark to Robert Stith, one of the early 
judges of the Superior Court; while many others refer it to 
Arthur Fort. It is possible that all these claims may be 
well founded. There were several Judiciary Acts before 
that of 1799, and the latter is largely a revision of those 
which had previously been adopted. So that each of these 
reputed authors may have had part In one or the other 
of these Acts.^ 

139 



David Dudley Field is justly regarded as the foremost 
law reformer of the age. He has received international 
recognition; and his fame is as assured as that of Kent or 
Story. His admirers are justly indignant that in many juris- 
dictions whole sections and titles from his Code of Civil 
Procedure have been copied, almost word for word, without 
any acknowledgment to him. But what shall we say of the 
injustice of fame, when even in our own state we do not 
know the name of that unheralded reformer, who, in 1799, 
in the legislature of the then sparsely settled state of Geor- 
gia, introduced and passed the Judiciary Act, which in form 
and substance accomplished exactly the same result wrought 
by Mr. Field by his Civil Code. 

Abroad our jurisprudence has utterly failed to win rec- 
ognition for the priority and success of this first and most 
vital of the law reforms. 

Forerunner that she was, multitudes of well posted 
lawyers are ignorant that back in the eighteenth century, at a 
time when the system of special pleading was regarded as 
the very embodiment of perfection, Georgia, was first in 
condemning its evils, and was the pioneer in establishing 
the simple and wise method of procedure which England 
herself has substituted for the arbitrary, though logical, 
system of Coke and Littleton. 

The very fact that Georgia so outran all others, and 
had had the new system in successful operation half a 
century before other states even began to discuss the ques- 
tion, seems to have resulted in her being absolutely ignored 
as the originator of the greatest of the modern law reforms. 

The Act of 1799 in terms abolished special pleading; 
repealed all distinction between forms of action; in a sen- 
tence requiring the "cause of action to be fully, plainly and 
distinctly set forth," announced a principle governing plead- 
ings which a century of actual experience has demonstrated 
to be both comprehensive and elastic enough to meet the 
requirments of the simplest or most complicated case.^* 

The curious customs of that day which Watkins' Digest 

140 



preserves have now more interest for the reader than the 
body of useful law which has survived. But we must not 
forget that it was these early Georgians who were the first 
law reformers and the first to endeavor to get rid of the 
encumbering technicalities of the English procedure. A 
number of these early statutes contain provisions permitting 
the defendant to plead the general issue, thereby getting 
rid of Replication, Rebutter, Sur-rebutter, Rejoinder and 
Sur-rejoinder, and many of the Inconveniences of special 
pleading. But the great and abiding work of these men 
was the Judiciary Act of 1799, which is still the framework 
of our judicial system. They were familiar with the com- 
mon law methods as administered in the Colony. They 
had seen the evil results of the radical changes to regulate 
the courts, made during the Revolution and in the light of 
their experience with what was too formal and what was too 
loose they adopted a happy medium — the Judiciary Act 
of 1799 — which, with all of its admirable qualities, is still 
of force. Let us not forget that for the simplicity of our 
practice and the advantages of our procedure, we are 
indebted to the Georgia Bar of the i8th Century.*' 



141 



APPENDIX 



ADDRESSES AND PAPERS USED IN THIS COMPILATION 

The Arabic numeral following a passage indicates that it 
is quoted, generally literally, from the address or paper in- 
dicated. 

(1) Walter B. Hill— "Bar Associations," 5 G. B. A. (1889) 51. 

(2) Walter B. Hill, — "The History, Objects and Achievements of 

the Georgia Bar Association," 19 G. B. A. (1902) 119. 

(3) Joseph R. Lamar,— "Georgia Law Books," 15 G. B. A. (1898) 

118. 

(4) Alexander C. King,— "Sketch of the History of Land Titles 

in Georgia," 2 G. B. A. (1885) 126. 

(5) N. J. Hammond— "Georgia Driftwood," 13 G. B. A. (1896) 171. 

(6) Joseph R. Lamar, — "The Bench and Bar of Georgia During 

the Eighteenth Century," 30 G. B. A. (1913) 52. 

(7) Walter G. Charlton,— "A Lawyerless Court," 18 G. B. A. 

! (190^) 261. 

(8) Mrs. J. Render Terrill, — "The Georgia Lawyer as Viewed by 

a Womtan," 18 G. B. A. (1901) 197. 

(9) Charlton E. Battle,— "The Georgia-Tennessee Boundary Dis- 

pute," 19 G. B. A. (1902) 87. 

(10) Orville A. Park,— "The Military Record of the Georgia Bar," 

35 G. B. A. (1918) 53. 

(11) Chas. C. Jones, Jr., — "Compensation of the Judiciary," 1 G. B. 

A. (1884) 89. 

(12) Jno. L. Hopkins,— "The Evolution of the Code," 16 G. B. A. 

(1899) 66 

(13) Walter ^cElreath,— "The Provisions of the Constitution of 

1877 Relating to Finance, Taxation and the Public 
Debt," 30 G. B. A. (1913) 162. 

(14) Benj. E. Pierce,— "Taxation," 38 G. B. A. (1921). 

(15) Chas. C. Jones, Jr.,-— "Biographical Sketch of Jno. McPher- 

son Berrien,'^8 G. B. A. (1891) 92. 

(16) Luther Z. Rosser,— "Some Old Saws Resharpened," 37 G. B. 

A. (1920) 85. 

(17) Andrew J. Cobb, — "Report of Permanent Commission on the 

Revision of the Judicial System," 30 G. B. A. 
(1913) 199. 

(18) William M. Reese,— "The Constitutions of Georgia," 2 G. B. 

A. (1885) 90. 

(20) Andrew J. Cobb, — Report of Committee on Jurisprudence, 

Law Reform and Procedure, 27 G. B. A. (1910) 72. 

(21) Walter McElreath,— "Justice Courts" 27 G. B. A. (1910) 152. 

(22) Samuel Hall,— "The Jury System," 2 G. B. A. (1885) 111. 

142 



(23) Edgar Watkins,^'A Constitutional Convention Unnecessary," 

30 G. B. A. (1913) 183. 

(24) Joel Branham, — "The Emancipation of Woman in Georgia," 

31 G. B. A. (1914) 184. 

(25) Robert C. Alston,— "A State within the State of Georgia," 

29 G. B. A. (1912) 137. 

(26) John W. Park, — "Georgia as a Litigant in the Supreme Court 

of the United States," 13 G. B. A. (1896) 106. 

(27) Robert C. Alston, — "Development of the Federal Constitution," 

31 G. B. A. (1914) 100. 

(28) Joseph R. Lamar, — "Georgia's Contribution to Law Reform," 

9 G. B. A. (1892) 62. 

(29) Z. D. Harrison,— "The Supreme Court of Georgia," 33 G. B. A. 

(1916) 122. 

(30) William B. Hornblower,— "The Constitution in 1795 and in 
1895." 12 G. B. A.,(1895) 55. 

(31) William W. Gordon, Jr., — "Defects in our Criminal Procedure," 

23 G. B. A. (1906) 236. 

(32) R. D. Header,— "The Circuit Rider by the Sea," 31 G. B. A. 

(1914) 227. 

(33) Joseph R. Lamar, — "History of the Establishment of the Su- 

preme Court of Georgia," 24 G. B. A. (1907) 85. 

(34) Andrew J. Cobb, — "Report of Committee on Legal Education 
and Admission to the Bar." 26 G. B. A. (1909) 76. 

(35) Lamar C. Rucker, — "Marriage and Divorce in Georgia," 32 

G. B. A. (1915) 196. 

(36) John W. Akin,— "The Circuit Judge," 4 G. B. A. (1887) 84. 



14[ 



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